Introduction of the Water Resources Bill to the Portfolio Committee

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PORTFOLIO COMMITTEE ON AGRICULTURE, WATER AFFAIRS AND FORESTRY
9 FEBRUARY 1998
INTRODUCTION OF THE WATER RESOURCES BILL TO THE PORTFOLIO COMMITTEE

Documents Handed out

Minister's Address to introduce the bill
National Water Bill, 1998
Water Population Links Diagram
Constitutional Restrictions on a new Water Law Dispensation
National Water Bill, Schedule VIII acts repealed

MINUTES
The aim of the meeting, as well as the follow-up meeting on the next day, was to introduce the Bill to the members of the committee so that they can take the Bill away and study it during the next month. The meeting was dominated therefore by presentations on various aspects of the Bill by representatives from the Department of Water Affairs. Questions from the committee members were in the most part restricted to issues of clarity. The department had the following representatives: Minister Kader Asmal, Mr. M. Muller, Mr. Chris Audie, Judge Gildenhuys, Mr. Kavin, Ms. Day

Minister Kader Asmal's address introduced the National Water Bill to the committee.

Mr. Muller introduced the generalities of the Bill, Chapter by Chapter.

Judge Gildenhuys compared the Bill to the 1956 Water Act. He supplied the background of the 1956 Water Act, before going on to outline the basic concepts of public and private water, and the apportionment and classification issues. In the new Bill he stated that the government has control on all water, not only what was previously public water. The new Bill also provides for the necessity of environmental protection.

Ms. Day talked around Chapter 3: the protection of water resources. Specifically she mentioned there are resource-quality objectives that would be observed by the authorities managing the water resource. The sections and divisions of the resource would be worked out by managers and scientists. No water would be taken unless provisions had been made firstly for the need for human usage, and secondly for the requirements for ecological stability. The costs of pollution are to be paid by the polluter, and if that is not possible, the state will cover the costs.

Mr. Audie outlined Chapter 4: the use of water. He emphasised the problems of present legislation and Acts that will be invalidated by the Bill. He went over the chapter page by page, giving examples and situations to illustrate the sections. The necessity for public consultation for major uses of water were highlighted.

At this point the Chairperson reminded the committee that the meeting was just an introduction and overview, and that the Bill will be gone over section by section at a later time.

Mr. Menz (Inkatha Freedom Party) acknowledged that the document was impressive, but noted that with the ANC majority there was futility in finding agreements. The meeting was closed for lunch, to resume in the afternoon.

Afternoon session not covered.


APPENDIX 1:

OPENING REMARKS BY PROF KADER ASMAL AT THE
PRESENTATION OF THE NATIONAL WATER BILL TO THE
PORTFOLIO COMMITTEE FOR AGR!CULTURE, WATER AFFAIRS
AND FORESTRY ON 9 FEBRUARY 1998

Honourable chairperson, honourable members, when I launched this Bill on the media on 27 January 1998 I expressed exhilaration at being able to share with millions of South Africans a transformative, constructive, forward looking piece of legislation - the National Water Bill. This morning! would like to share the same sense of excitement and indeed pride in being a South African, particularly during this period of transformation.

We are presented with a rare opportunity to contribute directly to peace and stability for many, many years to come and to improve materially and directly the lives of many millions of our people, black and white - those who are alive, and many yet to be born.

I am proud to be associated with a piece of legislation such as this National Water Bill. As you know on December 19, 1997, the President signed the Water Services Bill. I was also very proud when that act became law. But for this Bill it was a different kind of excitement. It was a groundbreaking Bill. It was not replacing an existing Bill. I feel a different kind of elation for this Bill.

While policy is always relevant, this Bill is not driven primarily by ideology. It is driven simply by finding innovative and practical answers to the question: "What should be (lone in water legislation to ensure stability and prosperity for this country in the short term as well as in the long term." This has to take due account of the past, i.e. those who were detrimentally affected by laws of that era, those who made investments based on the then allocations, but it also has to look very far into the future. At all times in this government one has to keep in mind that while we have an opportunity to improve the quality of lives of all our people, depending on what choice of action we take our action could yet turn out to be the ruin this country. Thus one has to be both visionary and juggler - not easy!

It is important therefore to ensure that the most downtrodden as well as the most privileged of our society have some feeling of ownership of this Bill. If this Bill is not good for the poor, then it surely is not good for the rich. Whether you are black, or white or whether you are rich or poor, our destinies are intertwined. We all face a water emergency by 2020 unless we act in concert, and now.

I do not need to go into details about why some of our people had no access to water. That is known to all of us here. In any transformation, if those whose cause was the very reason for change, experience no changes in their lives, such "transformation" could only bring about civil strife and that would be contrary to the objectives of this government. When we think about it, surely we are prepared to say let's sacrifice a little - even quite a lot - for the benefit of all of us.

At the same time we obviously have to think about those who benefited from the system previously and ensure that they are not unfairly penalised. We could not therefore seek to introduce legislation that undermines the continued economic viability of those individuals.

During the drafting of this Bill we had to take into account all the issues outlined above. We therefore had to make sure that all sectors of society had an opportunity to contribute to the crafting of this Bill. We literally travelled the length and breath of this country in search of the wisdom of our people hidden behind the vast mountains of this beautiful land, across many rivers and valleys, deep and shallow, separated by thousands and thousands of tarred roads, dusty roads, as well as ensuring that we (10 not leave out those who liver in the concrete jungles of our cities and in the ample, leafy suburbs.

You will recall that early in 1995 a document called "You and Your Water Rights" was published by my department. That document served to stimulate our people's emotions and thoughts on water legal issues, thereby sparking debate about water rights. It was meant for those who were ignorant and those who were well conversant about their rights; and, more importantly, about why it was necessary to change the law. The response we got was, needless to say, very broad ranging. The important thing is that it was overwhelmingly positive. You will know that most of the comments came from the more affluent sectors of our society.

In April 1996 the department published the "Fundamental Principles for the National Water Policy". Provincial consultations on the document took place across the country culminating in a National Conference in East London in October 1997. Again this document drew many varied comments based, as expected, on people's expectations of the future water legislation. The original principles were fundamentally amended in that conference as a result of the contributions from all sectors of society. It is therefore to be expected, as I said earlier, that the resultant Bill emerging from the whole process should reflect as far as possible the aspirations of all the peoples of South Africa. In November 1997, the principles were approved by Cabinet, paving the way for the drafting of the White Paper. The principles were then elaborated on in the White Paper for Water Policy in South Africa. As you know the White Paper was launched in May 1997 after it was approved by Cabinet.

The National Water Bill is being tabled almost three years after the beginning of the process. As you will recall, no less than 36 workshops were held in the country on the National Water Bill. This is in addition to the many times when I personally, and senior members of my department met face to face with various stake holder groups to explain what we are trying to do as well as to give them an opportunity to share their views, concerns and fears about what we were doing.

We have also had, over and above the provincial workshops, a National workshop where we concentrated on issues that the farmers specifically were concerned about.

I must admit that we have not necessarily seen eye to eye about various issues (luring the process. However, that is the essence of democracy, that people will differ with one another, but in a way that affords all concerned an opportunity to be heard and agree to differ. Honourable members, this bill represents a seventh draft, after numerous consultations with specific stakeholders on previous drafts and including other government departments. A historic milestone was an agreement between the Department of Environmental Affairs and Tourism and my department. It was agreed to draft a memorandum of understanding that would map out in broad terms how the two departments would work out certain operational aspects of the Bill. The important thing about this Memorandum of Understanding is that it is not like any other memorandum of understanding. It evolved from a genuine attempt by two departments to reach a consensus about issues that otherwise would stand in the way of progressing with the Bill if they were not resolved. My department offered to draw up this memo which was heartily accepted by the Department of Environmental Affairs and Tourism. This reflects a new style of doing things - reaching out to each other in quest for lasting solutions to our problems.

At one stage of the process of the development of this Bill we convened an international workshop specifically to learn from experience elsewhere about how to produce reforming legislation that is implementable. This workshop represented only a small fraction of our international liaison in the drafting of this legislation. We went out of our way to find experts around the world continually to advise us on this legislation. During all this time we were conscious of the fact that we are ultimately developing a South African law that must meet and even surpass international standards. But let it not be forgotten that this is a truly South African Bill, responding to the variety of needs the combination of which can only be found in South Africa.

So, honourable members, lets take a brief look at what these needs are: As you know, more than twelve million of our people have no formal supply of water. As population grows, this claim to water resources also increases. This bill is drawn up with the vision that one day all people of South Africa will be served with water. This is not just a Kader Asmal vision, it is enshrined in our constitution as you will hear later from my legal adviser, Ms Stein. The Reconstruction and Development Programme also guarantees water for basic human requirements. This Bill, Madame chairperson, responds to this requirement by ensuring that the requirements for basic human needs are reserved and not subject to authorisation. Without this provision our constitution as well as our Reconstruction and Development promise would be hollow.

Our constitution also enshrines protection of the environment in order to promote justifiable social and economic development. If the environment is totally destroyed in the wake of our development, that development is doomed to eventual collapse due to limiting natural resources. So this constitutional provision is based on knowledge that the environment represents some kind of insurance to humankind.

This Bill meets this requirement by protecting the water that is vital to meeting environmental needs as part of the reserve.

Further, the Bill prioritises those who were previously disadvantaged in the allocation process. This is to ensure that they are not disadvantaged even further by not recognising their plight. Now it is important to keep in mind that whatever proposals that are made take into account what I call the facts on the ground. In this case the fact on the ground is that there are relatively few such cases of disadvantaged people who will require this kind of assistance. If their number was expected to be in millions, even thousands, we would have found another measure that would be more appropriate. At the same time the Bill recognises that in the process of rectifying the ills of our past certain people may be negatively affected. Therefore a provision for compensation for those people that become so affected that their livelihoods are threatened, is made. You will hear more about the allocation process from Mr Audie, one of the members of the drafting team and former Deputy Director General in the department, a little later.

Another important feature of the Bill is that local water users will play a direct role in water resource management through Catchment Management Agencies. This is clear democratisation of managing the water resources in this country at work. It is a deliberate move away from centralised water resources management. This is in keeping with the need to trim the civil service and to ensure that accountability rests with the users themselves. Because by its very nature, management of water resources will always produce disputes, the Bill also provides for dispute resolution mechanisms which did not exist previously, save for a water court which by anybody's imagination could not be a dispute resolution mechanism. You will hear more about how the Bill responds to the need for rationalised institutional arrangements from the Director General, Mr Muller.

Honourable members, democracy demands that people play a more direct role in activities that affect their lives. The legacy that I have inherited in my department is somewhat not compatible with this requirement. As a Minister I have inherited far reaching powers to regulate how people should relate to water resources. I do not wish to indulge myself with these powers. Even if I were an engineer, which I am not, I would not be that kind of social engineer. I am therefore giving up the powers that I currently have in the Water Act of 1956.


This bill, of course, will also determine that no Minister in future has such vast powers. As you will hear from Judge Gildenhuys, most powers will be devolved to catchment management agencies.

The devolution of power to local structures is accompanied by an obligation which we place on ourselves as government, to ensure that information regarding Water resources Management is accessible. This is done in anticipation of the Open Democracy Bill. You will hear later from Mr Kavin, who has been involved in all areas of the Bill, how this obligation will be met.

Madame Chairperson, our greatest challenge as government is to improve economic growth in our country through, among others, efficient use of resources, job creation, and any other activity that is beneficial to these broader objectives of our country. Any legislation that is introduced by government therefore should be adding value to these objectives. As a Minister, I had to be conscious at all times during the drafting of this Bill of the need to promote social and economic development. A thread running through all the aspects of this Bill is the promotion of efficiency in water use, promotion of economic development and promotion of social development in an equitable manner.

The Bill is about economic development. It is about ensuring that the needs of our economy are not undermined but proactively promoted. We all know the role played by water resources in the economy of this country. It is not enough just to provide water for basic human needs, people have to live beyond just surviving. So, just as water is limiting to life so it is limiting also to economic development. I can assure you I could not be party to legislation that does not seek to maximise the potential of water use for the prosperity of this country. It is for that reason that you will find many references to beneficial use right through this Bill.

To ensure that we as a country extract maximum value from our use of water, it is necessary to have a system that can respond, with flexibility and certainty, to changes in socio-economic circumstances and market conditions. It is no good having a situation, as in the past, where water rights become the imprisoned birthright of particular persons almost by accident - because they own land next to a river -and remain unused because the owner lacks either the capacity or inclination to put his or her water rights to work.

Worldwide9 the trend is to move away from systems of water allocation that vest in perpetuity; the trend is towards fixed term licences, so that water use can be reassessed within a reasonable period, without disrupting the economic viability of the water use for the time being. In Australia, the licence period is 15 years. In the Bill before you, we have been more than twice as generous, contemplating a fixed period of 40 years, and also not ruling out, where circumstances perm it, the grant of licences for an indefinite term.

Within the strict parameters of economic efficiency that will guide the allocation of licences, there is the absolute necessity to redress the wrongs done to actual or potential black farmers in the past. Within the property clause of the constitution itself is a provision for water-related reform. And this clause is, in the broadest sense, an important part of the constitutional mandate for this legislation. By facilitating new entrants into the agricultural sector, we will enhance the productive capacity of our people as a whole, which is essential if we are to keep the ship of state afloat: all of us must be enabled to row the boat with vigour. We cannot afford a situation in which some of us - reduced to a state of permanent demoralisation and ennui -become dead weight, passengers, slowing and potentially sinking the ship.

So the priority that will be given to the inclusion, for the first time, of black emerging farmers as full participants in the water economy is not a mere add-on or optional extra, something we are doing in order to be nice, because we like to give things away. No. The intention is to enhance the productive base of the farming economy by unleashing the under-estimated previously ignored talents of black rural communities.

There was an excellent example of this recently, where a wine farm here in the Western Cape made an arrangement with farm workers, entitling them to own a ten hectare plot assuming they raised the quality of the farm's output to prize-winning status within a fixed term of years. This they duly did, working with what one observer described as military zeal. And just last week, they took over ownership of the ten hectares as promised. This is much more than a happy story, a Saturday morning fairytale. It is hard-nosed business prowess. It was reported on the front page of the Wall Street Journal. It is the sort of thing that will put us on the map as a winning nation. It is about efficiency as much as about equity.

Some people have challenged the prioritisation of water for international requirements. As I have said to them such use of water is beneficial use for the public interest in South Africa. Honourable members, we cannot be blind to the facts before us. Available water resources are becoming more and more scarce for the Southern African region. You know that Botswana and Namibia are still faced with discussions on drawing water from the Okavango Delta, a jewel of Botswana, to Namibia. The economy of this region is expected to grow at a rate much more than previously as a result of the new political order South Africa is spearheading and supporting the move towards a regional economic integration. Many of the citizens of our neighbouring countries cross the borders in search of jobs in South Africa.

All these facts, even without mentioning the international treaties, are testimony to the need to anticipate things to come.

Alongside all these priorities - basic human needs, the environmental reserve, the needs of emerging farmers, economic efficiency and international obligations, there will quite frequently need to be very ordinary decisions about which of two or more competing commercial users should be allocated water. This will often be big or medium sized competitors and there will be little to choose between them, from a socio-economic standpoint. The waster allocation in issue will be in that zone of the National Water Strategy where government can afford to be agnostic or in different among competing users. How, in this category of cases, can we be sure of making responsible decisions that maximise social welfare without overtaxing the scarce financial and bureaucratic resources of the department?

The answer that we have (1e~ised is to auction the water off. Within this zone of agnosticism - only there and not more generally, not within the protected or Reserve Areas of the allocation system, not within the corrective action sphere, which is separate - we will allocate water to the highest bidder. Confronted with large or medium sized commercial competitors all claiming that they can maximise the economic value of a water allocation, we will say, in effect: put your money where your mouth is. This is the best way, within this zone of agnosticism, to ensure society's interests. It is certainly less fallible than having a departmental official try to discern, somehow, from his or her armchair, the relative merits of the competitors.

Running throughout the entire body of this legislation is, as the practical embodiment of our goals, the idea of government as the public trustee of the nation's water resources. This means not merely custodianship, as under the 01(1 law, nor does it mean nationalisation, as is the position in Israel and other jurisdictions, where the state is outright owner of all water. Rather, it means that there will be secure private use of water within an overriding framework of the public interest. We will be, with this legislation, beginning to make our constitution work; we will be breathing life and shape into its property clause, showing that property in the new constitutional order - and remember I personally was a leading advocate of a property clause -is a source of stability and equity, not a hoarding house for inherited privilege. In the particular area of water resources, moreover, the most enthusiastic pro-property jurisdictions in the world have seen the need for restraint.

Just as it showed up the weaknesses of nationalization, the deliberative process also enriched our understanding of the inherent limits that attach to private entitlements to use water. In the words of the United States Supreme Court Judge, Oliver Wendell Holmes, "few public interests are more obvious, indisputable and independent of particular theory than the interests of the public of a state to maintain rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purposes of turning them to a more perfect use. This public interest is omnipresent wherever there is a state ... It is fundamental and we are of the opinion that the private property of riparian proprietors cannot be supposed to have deeper roots".

Just as there can be no constitutionally protected right to pollute the environment, there can be no such right to use waster in a manner that abuses the resource itself, that kills the golden goose.

So honourable members, I hope to have convinced you that there is something good for everyone in South Africa in this Bill. Even if you do not agree with the position taken in the Bill, ask yourself whether it is good for the future of South Africa or not. I appeal to you to interrogate this Bill as a South African committed to improving the conditions of all in our country. Last year I wrote to all the major political parties in Parliament, requesting to meet with them to explain the points of departure for the National Water Bill. This was not politicking, it was a genuine need from my side to engage all the political parties in genuine debate about the fundamental policy imperatives.

From some interest groups I have received letters expressing their disquiet about some of these fundamental imperatives. Let me say that I specifically instructed my team to get senior constitutional counsel on the whole Bill. This was an attempt to ensure that I meet the concerns that the various interest groups had, including my own concerns. After receiving the opinion of Senior Counsel, the Bill was amended accordingly. This was in line with my original promise that this water Bill is not about a water grabbing exercise from the poor to the rich, from the Blacks to Whites.

During the process I met with a number of organisations and, as I have already said, we also had provincial workshops. However, I wish to emphasise that I or senior members of my department specifically met with the following: Business South Africa; Nedlac; SA Agricultural Union; National African Farmers' Union; Chamber of Mines; Afrikaanse Handelsinstituut; Chemical and Allied Industries Association; Wattle Growers' Association; the Sugar industry association, the Forestry industry association; the Council of South African Banks, just to mention a few.

We have had too much conflict on these shores. We have a weighty responsibility to place the future out of reach of resurgent violence. When we step back from the constitutional and technical detail of this Bill, that is really what it is all about. A nation is watching as we deliberate over these issues today. The questions with which we deal are at the forefront of popular consciousness and have even entered the lists of popular fiction, as in Jann Turner's recent novel, Heartland. As you know Rick Turner, the author's brilliant academic father, was himself claimed by the murderous hit squads of the past. But Turner's novel centres not on the pain of the past, but on the current and future problems of untangling a society where ownership and dispossession patterns are based on a history of racial pillage.

At a crucial point in the novel, after black farm labourers have nervously made clear their intention to pursue a land claim, the farmer secretly acknowledges the merits of the claim, but then he panics: "Water is my problem," he bellows at a land claims official. The disputed portion contains his dam, the lifeblood of all else on the farm. In the nature of popular romance - Ms Turner calls the book a "biltong western" - there is a happy ending when the recalcitrant farmer dies, the young black land claimant and the farmer's daughter fall in love, and together farm both plots in harmony! In the real world we cannot rely on the inexorable rhythms of the romance novel. We must plan for the hard cases. Yet the imagery of transcending conflict and finding our common humanity is one that should inspire us all.

I look forward to joining you, as our deliberations proceed, in crafting the skeleton architecture of our common future, for tomorrow's sake. Thank you. END.
 

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