National Water Act Amendment Bill: discussion & voting

WATER AFFAIRS AND FORESTRY PORTFOLIO COMMITTEE
26 October 1999
NATIONAL WATER ACT AMENDMENT BILL

Documents Handed Out
National Water Act in Context (attached to end of minutes)
National Water Act, 36 of 98.
National Water Act Amendment Bill, B53 - 99

SUMMARY
The Committee adopted the Bill, referring it to the National Assembly with two Amendments.

MINUTES
The National Water Act
The Director General of the Department of Water Affairs and Forestry, Mr Mike Muller, gave a brief overview of the National Water Act (NWA), before handing over to Advocate Mathipa to go through the NWA in more detail. The Committee had asked the Department to brief them on the NWA generally, before moving on to the proposals in the Amendment Bill.

Adv Mathipa outlined the general context of the NWA (see Appendix 1). Thereafter, he went through the chapters in the Act, looking at issues raised in the memorandums at the beginning of each chapter. In relation to the proposed Amendment Bill, he noted that the Water Tribunal decisions could be challenged in the High Court on issues of legal process only. Issues relating to licencing conditions, amounts, etc., could not be challenged by the High Court.

In response to a query by Mr Gininda (ANC), Adv Mathipa clarified that a decision made by any member of the Tribunal would constitute a decision of the Tribunal. In many cases only a single member of the Tribunal would hear a case, as the issue may be a technical issue with only the one member of the Tribunal having the necessary skills.

The Director General clarified that the Minister would choose one of the two lawyers nominated by the Judicial Services Commission as Chair. As the Tribunal would be carrying out semi-judicial activities, the processes need to be established and guided by a lawyer. One of the key tasks of the Chair of the Tribunal would be to establish the processes whereby the Tribunal would hear cases.

Professor Ngubane (IFP) noted that the Bill was very technical and had a lot of nuances. She asked how the Department was making the Act accessible to ordinary people in terms of letting them know their rights.

The Director General replied that the Act was complicated, and covered a wide range of issues. Therefore the Department had decided to promote awareness on issues as they were being implemented. As the Department was currently dealing with issues relating to the registration of existing water use, relevant groups had been targeted and education initiatives planned.

The National Water Act Amendment Bill, B 53-99
After the Committee adopted a motion of desirability, the Chairperson requested the Department to go through the new Amendment Bill.

Adv Mathipa explained that the Bill had two key aims. The first related to a need to clarify within the text of the NWA the meaning of 'existing water use'. In the NWA, sections 32 and 33 referred to each other, creating confusion. The amendments contained in sections 1 and 2 of the Amendment Bill were technical, and sought to correct the problem without changing the principle of the sections. The two sections were agreed to.

The second key aim of the Amendment Bill was to allow the Judicial Services Commission to recommend appointments to the Water Tribunal based on the nominee's legal experience. The Water Research Commission would recommend appointments to the Tribunal based on engineering, natural resource or knowledge of related issue experience. The current wording of the NWA required the Judicial Services Commission to make all recommendations. They had reported to the Minister that they felt they did not have the necessary skills to make recommendations on any but the legal aspects of the recommendations. The Minister and Department were therefore bringing the amendment to correct the situation. Sections 3 and 4 of the Amendment Bill attempted to deal with the issue.

The Committee accepted the principle of the amendments. After discussion on the two sections, two amendments to section 4 were made. The first amendment required that two candidates be recommended by each institution for any one vacancy. Section 4. 6 (c) was therefore amended with 'a candidate' being replace with 'two candidates'.

Section 4 was further amended to clarify the requirements for persons being nominated. Members expressed concern that while the current Act was clear in requiring people with legal, engineering or natural resource knowledge to be nominated, it was not as clear in allowing people with general community or water related experience to be nominated to the Tribunal. The Committee therefore amended section 4.6 (b) to read:

(b) The Water Research Commission must recommend persons qualified in water resource management, engineering or with knowledge of related fields for appointment as deputy chairperson and additional members of the Tribunal.

The Committed accepted clause 4 with both amendments. The Chair put the clauses to the Committee for formal consideration. All the clauses were accepted as amended. The Chair read the formal report referring the Bill to the National Assembly.

Appendix 1
NATIONAL WATER ACT, 1998 IN CONTEXT

By Adv. Kgomosoane Mathipa (Director: Legal Services. The original author of this paper is Hadley Kavin of Legal Services, DWAF. The paper was offered to me in my preparation for Portfolio Committee. To this extent I effected some changes in order to suit the audience. I am prepared to carry any criticism or blame emanating from the paper. All praise, if any; should go to Hadley Kavin.)

A. INTRODUCTION
Section 27(1) of the Constitution of the Republic of South Act, 106 of 1996 (the Constitution) provides as follows:

"Everyone has the right to have access to-

(a) health care services, including productive health care;

(b) sufficient food and water; ..."

(c) ... . "(underlining and bold provided).

Section 27(2) of the Constitution provides that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. Section 27 sets out the mandate and therefore the national agenda. The National Water Act, 1998 is one such legislative measure foreshadowed in section 27 of the Constitution. It provides a legal framework for the progressive realisation of the right of access to sufficient water. Before I delve into the discussion I suggest to outline the history of water law in order to put us, also, in historical context.

B. PAST HISTORY
The history of settlement in southern Africa is linked to the availability and supply of fresh water. From early times South African water law was based on the needs of white settlers who in colonizing the land promulgated a water law in which domestic and agriculture needs and later industrial needs played the major role (res publica) and the government had the function to regulate the use of water (dominus fiuminis).

Initially Roman and Roman Dutch law had a strong influence in the shaping on South African water law and water running in rivers was regarded as common property. This changed in the latter half of the 19^th century, after the occupation of the Cape by the British. The British trained judges introduced the principle that owners of property riparian to a river became entitled to water from that river.

The first codification of water law in South Africa was in the Irrigation and Conservation of Waters Act of 1912. The emphasis was still on irrigation and carried down the riparian principle. This Act was repealed by the 1956 Water Act, which also placed a major emphasis on the use for water on irrigation, although other water uses, such as domestic, urban and industrial, also received recognition.

This remained the situation until the National Water Act, 1998 (Act No.36 of 1998) ("N WA") was assented to by the President on 20 August 1998 As from 1 October 1999 the whole of the NWA is in full effect and is now the only Act dealing with water law.

C. NATIONAL WATER ACT
The NWA does away with and introduces some far-reaching concepts. The most important of these can be summarised as follows-

- The riparian principle is done away with. The nation's water resources become common property, belonging to the nation as a whole. Therefore the previous concept of private ownership in water is done away with;

- National government, through the Minister of Water Affairs and Forestry, becomes responsible as the public trustee of all water resources to ensure that water resources are protected and water allocated equitably and used beneficially in the public interest.

- All right to use water emanate from the NWA;

- Water must be available for the Reserve. The Reserve is a new concept and consists of two legs, namely the quantity and quality of water required to satisfy basic human needs as prescribed by the Water Services Act, 1997 (Act No 108 of 1997) for people who now or will in future require water and to protect the aquatic ecosystems in order to secure ecologically sustainable development and use of the relevant water resource. Thus environmental considerations are anchored in the NWA;

- Setting out in the purposes of the Act that institutions which have appropriate community, racial and gender representation must be developed to give effect to the NWA;

- Shifts the emphasis from the traditional "supply management" approach towards "demand management", that is conservation of the nation's water resources by lessening the demand and providing for an innovative pricing system.

Providing for extensive public participation. Virtually no final document can be produced until public participation has taken place;

- The abolition of Water Courts and the introduction a Water Tribunal to which appeals against certain administrative decisions can be made; and

- Recognition of international obligations.

D. STRATEGIES
The NWA makes provision for establishment of two water management strategies. These are the National Water Resource Strategy and the Catchment Management Strategy. The National Water Resource Strategy is binding on the Minister of the Department of Water Affairs and Forestry, other organs of state and all water management institutions for anything contained therein, while the catchment management strategy is binding on the relevant catchment management agency and is more on a local level.

Water resource management will in future be based on the management strategies and the classification system for the protection of water resources provided for in the Act. The contents of the National Water Resource Strategy are wide and included therein are the principles relating to water conservation and water demand management; the objectives in respect of water quality to be achieved through the classification system, as well as having to establish the projected future water needs. The NWA also in its strategy must provide for international rights and obligations.

E. ENVIRONMENTAL PROTECTION
Chapter 3 of the NWA deals with protection of water resources.

The Minister must classify the nation's water resources and then determine the class and resource quality objectives for each class. This will establish clear goals for resource protection and at the same time provide for a balance between the need to protect and sustain one's water resources and the need to develop and use them on the other hand.

An important function is for the Minister to determine the Reserve, which as stated above is closely linked to the Water Services Act.

Section 19 of the NWA provides inter alia that any person who is in control of land over which pollution is taking place or who causes pollution or potential pollution to take place, must take the necessary steps to prevent this from continuing. Should this not be done, the Minister shall have the right to take the necessary steps and recover the cost from the responsible person.

F. RECOGNITION OF ENTITLEMENTS
The NWA abolishes the historical distinction between public and private water. There is no ownership in water and all water is subject to a licensing system, except for-

- water use that is set out under Schedule I of the Act;
- general authorisations issued under section 39 of the Act; and
- existing lawful use recognised under the Act.

The statutory difference between water resources within an area proclaimed in terms as a government water control area in terms of the 1956 Water Act and areas outside a government control has now been done away with. In actual fact the whole of the country is a government control area.

G. LICENSING
Whereas the 1956 Act divided water into different categories, in the NWA all water has the same status. Section 21 of the NWA sets out what is regarded as water use. These include, amongst other uses, taking water from a water resource, storage of water, diverting water, discharging waste into a watercourse, disposing of waste in a manner that may detrimentally impact on a water resource and recreational use.

Two new concepts of water use are created. The first is that the Minister can declare any activity to be a stream flow reduction activity, if that activity reduces the availability of water. Afforestation has already been declared a stream flow reduction activity. The second new concept is that the Minister can declare any activity to be a controlled activity if that activity impacts on a water resource. Activities such as irrigation on any land with waste, recharging of an aquifer are examples of activities that are already controlled activities.

All water use requires a licence unless it falls into a Schedule I use. This deals with the de minim us use, such as water for reasonable domestic use, small gardening and animal watering (excluding feedlots), or water use that was permissible as an existing lawful use. This is water is use that was exercised during the period of two years before the date that section 32 came into effect; namely 1 October 1998); and under a general authorisation.

An important innovation is that a licence can only be for a maximum period of 40 years and is subject to a review period, which may not be at intervals of more than five years. A licence can be increased at each review period but not for more than the review period. This is known as the "revolving licence

If a person who has an existing lawful use applies for a licence under section 43 of the Act (compulsory licensing), and the application has been refused or has been granted for a lesser amount which results in severe economic prejudice, the applicant may claim compensation. Compensation cannot be claimed if the reduction is to provide for the Reserve, rectify a previous over allocation or a previous unfair allocation. Compensation must be claimed from the Water Tribunal.

The Minister has the right to attach condition to any licence as well as to make regulations on a various topics set out in section 26.

It is important to note that although the Water Services Act deals with water services, the actual water use is controlled under the NWA.

H. INSTITUTIONS CREATED UNDER THE ACT
The Act creates various institutions.

The first are Catchment Management Agencies (CMA). One CMA will be established in each of the water management areas that have been promulgated by Government Notice 1160 dated 1 October 1999 (19 in total). These will have various functions either delegated or assigned to them, thus bringing the management of water resources to the regional or catchment level. A CMA will operate via a board along the lines set out in Schedule 4 to the Act. The board is recommended by an Advisory Committee established by the Minister and has the important task to recommend to the Minister proposed members who are racially, gender and community representative.

A second institution, is that of Water User Association (WUA) that will operate on a restricted local level and are in effect cooperative associations of individual water users who wish to undertake related water activities for a mutual benefit. Irrigation Boards established under the 1956 Act have until 29 February 2Q00 to submit constitutions suggesting their transformation into Water User Associations. All WUA' 5 must have a constitution based on the guidelines set out in Schedule 5 to the Act, which must be approved by the Minister. The policy of the Department is that these must also as far as possible be racially, gender and community representative.

A third institution is bodies to implement international agreements. This can only be established by the Minister in consultation with the Cabinet.

A fourth body that the Minister can establish is Advisory Committees. These committees may be established for a particular purpose but can also have powers delegated to it by the Minister.

Lastly the NWA establishes a Water Tribunal where appeals from administrative decisions by the Department and CMA's can be heard. The question of compensation for loss of water entitlements is also to be heard in this Tribunal. Appeals on question of law from the Tribunal are heard in the High Court.

I. OTHER LEGISLATION
The NWA is aligned with other laws in order to prevent, for example, duplication of applications, unnecessary expenses and where possible a "one stop" can be issued. Specific examples are-

- Environment assessments in terms of the Nature Conservation Act, 1989 can be taken into recognition by the responsible authority when issuing a licence;

- if a licence is issued under other acts that comply with the NWA, the responsible authority can dispense with a licence under the NWA;

- provisions in the Constitution of the Republic of South Africa must be complied with.

Further, as can be seen from above, there is a close connection between the Water Services Act and the National Water Act.

J. SUMMARY
The NWA is a far-reaching piece of legislation, which has both economic and social features. The former to address water management by conservation and pricing strategy and the latter by ensuring that past discriminatory principles are not continued in the NWA.