National Water Bill: discussion

AGRICULTURE, LAND & ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
20 July 1998
NATIONAL WATER BILL: DISCUSSION

Documents handed out:
Department of Water Affairs and Forestry : Proposed Amendments to Section 22, National Party (see Appendix A)
Proposed Amendments to Section 22 (see Appendix B)
Inkatha Freedom Party: Proposed Amendments to Section 22 (see Appendix C)
Democratic Party: Proposed Amendments to Section 22 (see Appendix D)

The meeting started with the Department of Water Affairs and Forestry presenting its proposed amendments. The amendments were of a technical nature and did not alter the principles of the Bill.

National Party, Inkatha Freedom Party and Democratic Party presented their proposed amendments to Section 22 (6-8) where compensation for water is discussed. The three Parties felt that these clauses were unconstitutional.

The National Party began by introducing its amendments. The key amendment dealt with section 22(6). The National Party argued that the clause was unconstitutional, and the Bill should be referred to the Constitutional Court. The amendments that followed were a result of changes made to 22(6).

The department responded, saying that it was of the opinion that the Bill was constitutional, as a result of section 25(8) of the Constitution. A controlled but tense debate ensued between the National Party and the Department.

The Democratic Party followed with its proposed amendment. The DP’s amendment also dealt with section 22 (6) of the Bill, with similar changes as proposed by the National Party.

Similarly the Inkatha Freedom Party amendments were presented, with the key amendment dealing with section 22(6), along the lines of the amendments proposed by the other two parties.

The committee will meet to deliberate further on the Bill on Wednesday morning, 22 July.

CLAUSE 28

1. On page 44, in line 35, after "(4)" to insert "and notwithstanding section 49(2)".

CLAUSE 63

On page 76, in line 40, after 1'power" to insert "and duties".

On page 76, in line 41, after "power" to insert "and duty".

CLAUSE 129

1. On page 130, in line 50, to Omit "item 1(6) of Schedule 2" and to substitute "Section 130'.

SCHEDULE 3

1. On page I 60, in line 1 of item 6(3), to omit "responsibility authority" and to substitute "catchment management agency".

SCHEDULE 5

1. On pagee 178, in the heading of item 2, after ''the ' to insert ''National'

9 On page 175, in line 1 of item 2, after ''the'' to insert "National

3. On page 156 in line 3 of item 18(1), after "pricing" to emit ''policy' and to substitute strategy.

Suggested amendments to the National Water Bill (B34B-1 998) as introduced to the Select Committee on Land. Agriculture and Environmental Affairs in the NCOP, on 20 July 1998

1 Section 22 (6)

1.1 Delete in line 48 "resulting in severe prejudice to the economic viability of an undertaking

Insert in line 48 after "use", "that constitutes a material prejudice to the property or undertaking ..."

1.2 Delete in line 49 "subject to subsections (7) and (8). Insert in line 50 after "consequence" "thereafter in accordance with sections 25(3) and 25(4) of the Constitution".

2. Section 22(7) Falls away

3. Section 49(4) Delete in line 46 "severely"

4. Section 24

Delete in the second line everything after "consents".

5. Section 28

Suggested Amendments to the National Water Bill

1. Clause 28 should be entirely substituted with the following:

"28(1) A license contemplated in the Chapter must specify -

(a) the water use or uses for which it is issued;

(b) the property or area in respect of which it is issued;

(C) the person to whom it is issued;

(d) the conditions subject to which it is issued;

(e) a license shall only be revocable in terms of provision of section 22(6);

(f) the review periods during which the license may be reviewed under section 49, which must be at intervals of not more than five years.

(2) Subject to

(a) subsection (3)

(b) restriction, suspension or termination in terms of this Act; and

(c) review under section 49, a license remains in force until the end of the license period, when it expires.

(3) The license period of a license will recommence at the end of every review period, unless the responsible authority has, during the review period, served a notice on the licensee to the effect that.

(a) the license period will not commence, in which event the end of the license period will remain as it was immediately before that review period; or

(b) the license period will recommence, but that, from the end of the license period as it was immediately before that review period, the license will become subject to different conditions, which must be specified in the notice and which may include a lesser permitted water use.

(4) Before serving a notice under subsection (3), the responsible authority must inform the licensee of the contents of the proposed notice, state the reason for it, and give the licensee a reasonable opportunity to be heard."

6 Section 41

New sub clause (5)

A responsible authority must take the cost implications for the application in sub clauses (2), (3) and (4) into account

7 Section 56 (2) (c) Delete 56 (2) (c)

3 Section 69 &70 &71 Introduction to Part 2

Replace "National Assembly" in all four instances with Parliament

1 Clause 22(7)

The query: Whether clause 22(7)(b)(Ii) & (ii) are not adequately covered by the Constitution.

The response: It is submitted that section 25 of the Constitution adequately canvasses the requisite aspects, particularly the following provisions thereof

(3) The amount of the compensation and the time and manner of payment must be just and equitable1 reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.

(4) For the purposes of this section -

(a) the public interest includes the notion’s commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources.

Accordingly, merely determining the amount of compensation payable in terms of section 25 of the Constitution already weighs up the balance between the interests of the wafer user & South Africa's commitment to bring about equitable access to water for all the country’s people.

The Proposed amendment to clause 22(7) of the Bill

-(7) The amount of any compensation payable must be determined in accordance with section 25 of the Constitution.

2. Clause 36

The query: Is it necessary to perpetuate the discrimination against the forestry sector by its declaration as the only statutorily recognized stream flow reduction activity, with obvious associated negative public perception ramifications?

The response In order to alleviate the forestry sector's justifiable concerns in this regard, the Bill could be amended so as to only provide for future Ministerial declarations of stream flow reduction activities. Rebutting the argument that this would create a "hiatus period" during which the industry would be unregulated is clause 163(3) of the Bill, which reads :-

(3) Anything done under a law repealed by this Act remains valid -

(a) to the extent that it is not inconsistent with this Act; and

(b) until anything done under this Act overrides it."

The proposed amendment to clause 36 of the Bill:

The deletion of clause 36(1), consequential renumbering & amendments.

3 Clause 49

The query (a} Whether it is possible to incorporate into this license review clause the power to extend the period of a license to accommodate the basic production characteristics of the industry concerned? ; &

(b} Whether the word "severely1' could be omitted from clause 49(4) to reduce the subjectivity involved in determining the necessary extent of the prejudice?

The response (a) If, as suggested, the phrase "other than the period thereof" were deleted from the preamble to clause (49)2, this would also enable the responsible authority to reduce the period of the license, to the obvious detriment of the forestry industry A new subsection inserted after the current sub-clause (2) would be preferable; however, it is submitted that, without depriving foresters of the license period protection encompassed in clause 49(2), provision is made in clause 52 of the Bill for a license holder to apply for early renewal of a license during the period that the license is valid; &

{b} In order for foresters to qualify for compensation should any prejudice be suffered by them for license refusal, water quantity reduction, or adverse amendment of a license condition on review, the word "severely" must be omitted.

The proposed amendments:

(a) To clause 49 of the Bill -

Insertion of a new sub-clause (3), reading :-

"(3) On reviewing a license, a responsible authority may increase the period of the license to take into account the basic production characteristics of the industry which the holder of the license participates in,"

Consequential renumbering amendments would be necessitated hereby.

{b} To clause 49(4) & 22(6) of the Bill -deletion of the words ~ & "severe", respectively.

4 Clause 56

The Query Whether charges are payable In' respect of inter catchment management water transfers?

The response : Although such charges would be possible in terms of clause 56(2)(c), express provision could be made for same,

The proposed amendment to clause 56(2)(c) of the Bill

Insertion of the phrase " including charges for inter-catchment management water transfers" at the end of the current subclause.

Kindly take note that policy considerations have not been discussed in detail due to the request that this mandate be expeditiously completed, but most of these policy issues were scrutinised by the writer in her Memorandum addressed to the Agriculture Portfolio Committee1 dated 13th March 1998 & entitled THE NATIONAL WATER BILL 1998 - AN ANAYSIS OF THE SUBMISSIONS MADE BY THE FORESTRY INDUSTRY

To assist the Honourable Member Mr. Tarr in presenting the proposed amendments to the NCOP Standing Committee, same have been extracted from this Memo & listed separately overleaf

PROPOSED AMENDMENTS TO THE NATIONAL WATER BILL, 1998

clause 22(7)

Delete clause 22(7) & substitute therefor the following

"(7) The amount of any compensation payable must be determined in accordance with section 25 of the Constitution"

clause 36

The deletion of clause 36(1), & consequential renumbering & amendments

clause49

Insertion of a new sub-clause (3), reading

"(3) On reviewing a licence1 a responsible authority may increase the period of the license to take into account the basic production characteristics of the industry which the holder of the license participates in."

Consequential renumbering amendments would be necessitated hereby.

To delete the words "severely" & "Severe", respectively, in clauses 49(4) & 22(6) of the Bill.

clause 56

Insertion of the phrase ", including charges for inter-catchment management water transfers." at the end of the current sub-clause 56(2)(c).

PROPOSED AMENDMENTS TO NATIONAL WATER BILL 34B - 98

Cause22 (6) line 48 and clause 49 (4)

To delete the word "severe"

Cause 22 (7)

To replace the entire subsection with the following:

The amount of any compensation payable to the determined in accordance with section 25 (3) of the Constitution