Water Affairs & Environmental Affairs Departments on International Agreements: Nagoya Protocol & Algiers Convention

Water and Sanitation

03 September 2012
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Committee, with delegates from the Department of Water (DWA) and the Department of Environmental Affairs (DEA) were briefed on three international agreements.  These were Phase II of the Lesotho Highlands Water Project (LHWP), the African Convention Agreement on the Conservation of Nature and Natural Resources, and the Ratification of the Nagoya Protocol on Access and Benefit Sharing.

The briefing on the LHWP by the DWA was comprehensive and included a brief history on Phase I, main objectives, strategic focus, current status and ratification. The second half of the briefing dealt with technical issues such as the organisational structure, project governance, cost, implementation, biophysical features and social issues. The Committee raised concerns about the anti-corruption strategy, creation of jobs and the process of agreements, while also stating their excitement at the positive progress. While a few issues would be raised as part of the Committee’s resolutions, there was unanimous agreement on the LHWP.

The briefing by DEA on the African Convention Agreement on the Conservation of Nature and Natural Resources dealt with issues such as strategic focus, implementation, and implications related to organisation, finance, communication and vulnerable groups.  Members raised concerns about the non-appointment of a national authority and the possible implications of a liability clause which would be put into a report on the Committee’s resolutions. The outcome was that the Convention would be passed in principle, but the issues contained in the resolution still stood.

The briefing on the Nagoya Protocol dealt with the objectives of the Protocol, status, benefits of ratification and recommendations. The Committee raised questions on genetic resources, self-executing clauses and the non-consultation of traditional leaders.

Meeting report

The Chairperson said he had already briefed the Members on the Committee’s programme. so the agenda for the meeting would be for the Committee to look at and pass three international agreements. He said five agreements were meant to have been presented, but two presenters had been unable to attend. He noted that although the agreements were meant to be taken seriously, this was sometimes difficult as by the time they reached the Committee, they had already been agreed to by the Executive and could not be changed. If the Committee had concerns, these would be contained in a resolution so the adoption could still continue. He had already raised issue about this in Parliament as it could lead to rubber-stamping. At the same time, he did not foresee problems occurring from the agreements on the agenda. The programme had been changed slightly as the Minister or Director General would be present for the briefing on the Water Resources Strategy which would take place next Tuesday and Wednesday. A press statement had been sent out alerting people that public hearings would take place mid-October. He urged those present to let people know. This moved the briefing on the Millennium Development Goals (MDGs) to 18 October as part of the annual report. He had made DWA aware that the visit to the Lesotho Highlands Water Project would take place during the Committee’s recess week at the end of September. He said space for the briefings on the remaining two agreements would be made. Committee minutes were almost ready for adoption.

Department of Water: Phase Two of Lesotho Highlands Water Project Agreement
The Director-General (DG) of the DWA, Mr Maxwell Sirenya, said the introduction of the delegation would first take place.

Mr Trevor Balzer, Chief Operating Officer for the DWA, introduced the delegation and outlined the documents the Members should have.

Mr Sirenya began the briefing with an introduction to the Lesotho Highlands Water Project (LHWP). He said Phase II of the LHWP had been signed on 20 August between the government of South Africa and the Kingdom of Lesotho. The main objectives of the LHWP were to enhance the use of the water of the Senqu/Orange River, generate hydro-electric power in Lesotho, and to augment the original treaty and address specific issues related to the operation and implementation of Phase II. The strategic focus of the agreement was to foster closer co-operation between and among the relevant Southern African Development Community (SADC) states to advance the SADC agenda of regional cooperation and poverty alleviation as articulated in Article Two of the Revised SADC Protocol on Shared Watercourses. Other factors included in the strategic focus was to strengthen regional integration by using water as a catalyst for socio-economic development. It also advanced economic links with key African partners and bilateral cooperation to cement political and strategic relations to lead to more coordinated strategies in various multilateral environments.

Mr Sirenya explained the current status of the LHWP in relation to the pertaining legislation.  According to the Office of the Chief State Law Advisors of the Department of Justice and the Department of International Relations, the agreement was not in conflict with any international and domestic law and, as per Cabinet resolution, the Minister of Water and Environmental Affairs had tabled the LHWP Phase II Agreement to Parliament (to both the Speaker of the National Assembly and the Chairperson of the NCOP) for ratification.

Ms Bizodwa Dlamini, Chief Delegate of Lesotho Highlands Water Commission, presented the Lesotho Highlands Water Project Phase II.  The project was a bi-national inter-basin water transfer to be completed in five phases over 30 years. She pointed out which governments were responsible for different areas of the implementation. The project was worth $8 billion and was one of the largest engineering projects on the continent. The purpose of the LHWP was to the augment the Vaal River system in RSA, to provide a cheaper alternative source of water, and presented a good opportunity for regional cooperation and the development of hydro-electricity for Lesotho. 

Ms Dlamini looked at project governance and discussed the current accountability framework. The water transfer features were strictly paid for by water users and were therefore off budget. The project had changed the course or direction of water, which meant the water now flowed upstream. She provided more information on the infrastructure of the two dams. The medicinal plants and precious fish species around the areas of the dam were conserved and formed part of a botanical garden.

Under Phase II, a third dam was to be built. The LHWP team was strict about biophysical features and had completed Environmental Impact Assessments (EIAs). Social issues related to the resettlement of 17 villages, 534 households and people affected or partially affected, community assets lost to the dam and inundation of a state prison. These villages would be relocated in the area.

Turning to the organisational structure, Ms Dlamini said independent oversight and appropriate checks and balances very important for Phase II. This would ensure the corruption from Phase I would not taint Phase II.  The governments of the two countries had been instrumental in convicting the people involved in the bribery. She outlined the creation of a Project Management Unit (PMU) to be staffed by about 30 people specifically to oversee Phase II.  Phase II had a Chief Operating Officer (COO) while the position of Chief Executive Officer (CEO) and the filling of other managerial positions was being looked into.

Mr Balzer provided some more context of the size of the project, stating that “7.8bn” had already been transferred, according to 2010 prices. These costs had been covered by the respective governments. The PMU was ready to start in December this year pending agreement by the Parliaments of both South African and Lesotho.
Discussion
The Chairperson said he had allowed the presentation to go into detail as it was a very specific agreement with huge costs, and in order to outline the specifics, given the Committee’s oversight trip. He noted the anti-corruption strategy in the package was interesting.

Mr G Morgan (DA) thought it was a useful presentation, especially the anti-corruption strategy. He wanted a briefing on the process of the contracts and what form they would take, even if they had not been concluded yet. He fully supported the agreement, but found it strange to have an agreement presented after the government had already signed off on it. This placed pressure on the Committee.  An initial briefing before contracts were signed would have been better and this should be noted in the Committee’s report.  The visit to the LHWP provided an opportunity for rigorous oversight given that it was a big project and that dams, globally, were controversial by nature.  Monitoring was needed to ensure that things were done on time, budgets were stuck to and that there was no corruption. He wished them the best of luck for this particular project.

The Chairperson added the chief law advisors had also been limited in their input on agreements. However, that was how the process worked.

Ms C Zikalala (IFP) commended the female presenter on an excellent job and for representing women. She was happy for the DG and glad the Committee were discussing positive progress for a change. She asked for more information about the medicinal plants and spiral aloes in the botanical gardens.

Dr S Huang (ANC) questioned the enforcement of the anti-corruption strategy and wanted information on the job creation which would arise out of Phase II. He also wanted to know about the resettlement of affected villages.

The Chairperson asked if the suggested amendments of the law advisors had been considered.

Ms Dlamini said the anti-corruption strategy applied to everyone including employees, the board and contractors. Consultation had already been concluded with their own state law advisors on the strategy, together with the World Bank and various other stakeholders. Each of the companies needed to align themselves with the anti-corruption strategy and needed to claim if they were under investigation or had ever been investigated. Lawyers on the PMU had looked through the background of all the consortiums involved.  A panel of engineering experts and the oversight team were important in this area.

Mr Leon Schalk Tromp, Chief Engineer for the LHWP, added that international audit companies had conducted audits on the project. Throughout the time he had been employed on the Project, they had received a clean audit. Looking at job creation, 4 500-5 000 jobs would be created on a temporary basis. Infrastructure, such as roads, camps and power lines, would create employment and once completed, the labourers would be retrenched while approximately 80 to100 labourers who had acquired skills would be used for operations and maintenance. This all depended on the time of the year.

Mr Balzer said the recommendations made by the chief state law advisors, in June last year, had been taken into account and their comments were evident in preferential procurement, anti-corruption policy and the provisions of the Public Finance Management Act (PFMA).

The Chairperson noted that all detailed questions could be asked when the Committee was on its oversight visit.  The Committee did not need all that detail to pass the agreement. Members should read the report and then decide on passing it. A separate short report on the concerns of the Committee should be drafted.  This should note that the Committee was aware of the structure of Section 231, where the Executive was allowed to negotiate and agree to agreements.  However, the next clause said Parliament needed to approve that agreement. This posed a conundrum, as by the time the agreements came to Parliament, there had been no briefings on them and the process became a rubber-stamping one. Without offending the Constitution, departments should at least arrange for Committees to be briefed.

The Committee formed a quorum and there was unanimous agreement on the LHWP.

Mr Sirenya mentioned to the Committee, as a courtesy, that there was a scheduled shut-down of the project planned in October and November for technical administration.

African Convention on the Conservation of Nature and Natural Resources
Mr Stuart Marigold, Senior Policy Advisor for the Department of Environmental Affairs (DEA), gave a background to the Convention. It was one of the oldest Conventions, having first been signed as an Organisation of African Unity (OAU) treaty in 1968. There had been recognition that the Convention needed to be revised, and this was done in July 2003 by the African Union (AU) to keep up with global environmental developments. The main objectives of the Convention were to conserve and preserve soil, protect fauna and flora through sustainable utilisation, control the erosion of land use, conserve water resources, prevent pollution, ensure sound management practices and the sharing of resources. It also covered the controlling of hunting, trophies and the prevention of illegal hunting, and recognised traditional knowledge and the rights of local communities.

Essentially, the status of the Convention was that it was currently not enforced and required 15 countries to ratify it to come into force after that. The intention was to send a positive message to other African states that had signed or were in the process of signing the Convention.

Mr Marigold turned to the strategic focus of the Convention, and stated the arguments for and against agreeing to and ratifying the Convention. The benefits outweighed any negatives and by signing the Convention, South Africa would be sending a positive message in conserving and managing its own natural resources. There was discussion on how readily the Convention could be implemented, given capacity concerns.  He felt the Convention would strengthen regional unity around issues and could be an instrument around which to form African opinions on issues of mutual concern.

Looking at organisation and personnel, the financial implications of the establishment of a Secretariat needed to be addressed. For communication, the Convention would rely on the GCIS and the Environmental Affairs website to promote the aims of the Convention and awareness of its implications. He said the Convention would support vulnerable groups, particularly rural communities, concerning the use of natural resources. For security, the Convention dealt with efforts to curb the illegal wildlife trade, particularly in rhinos, snakes and fauna and flora.

Mr Marigold said extensive consultation had been conducted with certain government bodies, like the South African National Biodiversity Institute (SANBI), the African Renaissance Committee, Cabinet cluster and environmental authorities in the provinces.

Discussion
The Chairperson asked if the state law advisors had written an agreement or presented a report.  

Mr Marigold said they had. The Department had checked with the state law advisors and the Department of Justice, and the Convention had been found not to be in conflict with the provisions of domestic or international law.

The Chairperson asked if there were any self-executing clause in the agreement.

Mr Marigold said there was a conference of the parties.

The Chairperson questioned what the financial implications of the Secretariat would be. He also raised a question on the liability clause (clause 24).

Mr Fundisile Mketeni, Deputy DG: Biodiversity and Conservation for DEA, said this point needed to be watched, as South African was viewed as a leader in the African continent.

The Chairperson suggested the Committee draft a report noting the liability clause and issues around the secretariat, and for the Department to brief the Committee continuously on matters brought to the attention of the DEA and the Department of International Relations and Cooperation (DIRCO). He said this could become problematic for the future, as clause 24 had consequences, especially monetary.  

Mr Morgan was concerned about the aspect of liability, as he did not understand the point of it. He was concerned that the Convention covered areas like water, agriculture and defence, which fell under other departments. This could be a problem. He thought the Convention was a big wish list of aspirations.  He also wanted to know why it had taken this long, and if the Committee was correct in processing it.

Mr J Skosana (ANC) asked how countries who did not comply participated in financial matters, particularly in terms of benefit sharing. How would they participate in security issues and in the implementation of programmes?

Dr Huang questioned the membership fees and the funding of other countries.

The Chairperson questioned who the national authority would be, under Article 21.

Mr Mketeni said the Convention had taken this long because it had been debated for some time in the Department. He realised it was a cross-cutting Convention, but felt it was a way for Africa to position itself in order to negotiate with other global conventions.  He noted the concerns of the Committee.

The Chairperson asked if other departments had been recently consulted.

Mr Mketeni said the issue of South Africa carrying the African continent in the global discourse should be considered.

Mr Marigold said in terms of consultation, the Convention had gone to the African Renaissance Committee, which had representatives of all government departments dealing with African issues.  From there, comments had been requested from various departments. The Convention had then gone to the DGs’ cluster on Trade and Security, where it had gone through another level of presentation and consultation before moving to Cabinet.

The Chairperson asked how this Convention differed, broadly, from the 1968 version.

Mr Marigold noted the Convention, in spirit, did not differ much from the 1968 version. The Rio Convention and 1992 Earth Summit and new principles to the environment had resulted in the basic modernisation of the Convention.

The Chairperson asked about the appointment of a national authority.

Mr Marigold said one had not been appointed at this stage.

The Chairperson remarked that he found this odd. Usually, when departments introduced agreements in Cabinet, they appointed a national authority.

Mr Mketeni said the DEA, by implication or assumption, was the national authority for the implementation of this Convention.

The Chairperson said this was legally and politically wrong, and should be stated in the resolutions. He said this was absolutely vital when the agreement became operative. He asked the Committee what they thought should be done. He suggested they hold over the adoption until the resolutions could be looked at as part of a package. In principle, he said, the Convention would be passed.

Mr Morgan asked if other countries were on the verge of ratification. Was the adoption needed for urgent ratification to get over the threshold or as part of a process?  He accepted the Department might not be able to answer.

Mr Mketeni said other countries might come on board after South Africa had ratified. He suspected other countries were waiting on South Africa’s decision.

The Chairperson said this was the usual story with Africa. Except for the liability issue, there was nothing controversial. The issue that had implications was the one related to the creation of duties, read together with the liability clause.  Members should let him know if they had other issues they found could be problematic, to be put in the Committee’s resolutions.

Ratification of Nagoya Protocol on Access and Benefit Sharing
Mr Mketeni said the briefing provided the Committee with the background to the Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization of the Convention on Biological Diversity, also known as the Nagoya Protocol on Access and Benefit Sharing (ABS). The purpose was to brief the Committee on the status-quo of the Nagoya Protocol on ABS and the intention to ratify the Protocol.

Mr Mketeni explained that the Nagoya Protocol was an international agreement adopted in Nagoya, Japan, on 29 October 2010. The objective of the Protocol was the fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge.

The Chairperson asked what genetic resources were.

Mr Mketeni said it was genes or data extracted from plants and animals.  The status of the Protocol was that it was open for signature by Parties of the Convention on Biological Diversity, from 2 February 2011 until 1 February 2012, at the United Nations (UN) headquarters in New York. The Protocol had gone  through a consultation process and legal opinion had been sought. The Protocol had been signed by the Minister of Water and Environmental Affairs on 11 May 2011. The Protocol had 92 signatures and five ratifications. It would come into effect on the 90th day after the date of deposit of the 50th instrument of ratification, acceptance, approval or accession.

The benefits of ratification were the fair and equitable sharing of benefits from the use of genetic resources and associated traditional knowledge, once they had left the country of origin. This could extend to research and development for human well-being, through its use on pharmaceuticals, cosmetics and agriculture etc. Benefits could also arise from technology transfer and training and profits could contribute to poverty reduction and sustainable use. Other benefits would be the strengthening of the implementation of national legislation and also to reaffirm the sovereign rights of States over their natural resources.

In his recommendations to the Committee, Mr Mketeni asked the Members to take note of the background and status of the Protocol and also to recommend to the National Assembly that South Africa sign and ratify the Nagoya Protocol.

The Chairperson noted there was already a chapter in the law on this and there was already effect to it. He was concerned that traditional leaders and communities were given powers but were not consulted by the Department. He asked if there were any self-executing clauses in the Protocol. It seemed very technical and straightforward.  Two resolutions would be drafted to deal with the process of international agreements generally to engage the Committee from an earlier stage.  A more specific resolution would be added to deal with more detailed aspects.

The meeting was adjourned.

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