Water related policies and institutions

Transcription

1 CUBANGO-OKAVANGO RIVER BASIN WATER AUDIT (CORBWA) PROJECT Water related policies and institutions Namibia

2 REPORT INFORMATIONS Title Policy & Legislative Addendum, Namibia part of CORB Date February 2012 Author(s) J. Barnes 1

3 Policy & Legislative Addendum - Namibia This review of the legislative and regulatory framework in Namibia draws predominantly from the Environmental Protection and Sustainable Management of the Okavango River Basin (EPSMO) Governance Review (2010) and from the first thematic report in the series of the Namibian Integrated Water Resource Management Plan, Review and Assessment of Existing Situation (IWRMP, 2010a). In terms of Part IX sections 42 and 43 of the December 2008 version of the proposed amended Water Resource Management Act No. 24 (WRMA) of 2004, the Minister is required to develop an Integrated Water Resource Management Plan (IWRMP) for the country. The IWRM Plan has drawn extensively on the Namibia Water Resources Management Review (NWRMR), undertaken during the period 1996 through to the publication of the final theme reports in 2003, a comprehensive review of the Legislative and Regulatory Framework (NWRMR 2003a) was undertaken. The authors stated that irrespective of points of difference, the report in its entirety, allowing for subsequent developments, should be accepted as the background foundation to the current process. The Water Resources Management Act, No. 24 (WRMA) of 2004, promulgated by Parliament in December 2004, which is currently under revision, is not only based on Namibian water policies and internationally accepted IWRM principles, but will provide the legal support and the overall guidance for the implementation of the IWRMP after the act is entered into force. Provision is made in the WRMA for the establishment of various institutions that will guide the management of water resources in Namibia, for example the establishment of a Water Advisory Council, a Water Regulatory Committee, Water Area Management Institutions, International Water Management Institutions (to manage transboundary waters) and a Water Tribunal. These institutions will play an important role in giving effect to the IWRMP and all the objectives that will be consolidated in the plan. Legal provision has also been made for the implementation of the policy to decentralise certain Government functions to the Regional Authorities and some rural water supply functions are at present being decentralised to the Regions. The IWRMP will accommodate the requirements of people in the regions as guided by the regional authorities. In 2004 the Government launched Vision 2030 for Namibia and this provides the overarching framework for the development of the country with the main goals aiming at improving the quality of life of the people and achieving the status of a developed country by the year Water resources development will significantly contribute to the achievement of the goals of Vision 2030 and in this respect provides guidelines for the water sector policy, water sector objectives and a strategy to achieve the required goals. The water sector goals are specifically 2

4 aligned to the existing water policies, the water legislation, the 2007/ /12 Water Sector Strategic Plan (MAWF 2007) and other initiatives such as the Poverty Reduction Strategy and National Poverty Reduction Action Programme (SAP). The overarching goals for the water sector are also fully aligned to meeting the Millennium Development Goals (MDG's) and the WRMA will provide the legal context to meet water management requirements in the future, once implemented. The broad priorities of the Namibian water sector are to Achieve the efficient allocation and assured, safe supply of water to the users; Ensure equitable access to water and sanitation services; Contribute to long-term social and economic development; Ensure the environmental sustainability of water use and re-use; Maintain water quality and prevent pollution; Achieve full participation of all the stakeholders in water issues; Develop a strong institutional capacity from the local to the national level. Secure access to water from the perennial rivers The water sector makes a considerable contribution to the economy of Namibia because water is an essential commodity for the maintenance of all livelihoods, especially in an arid environment. The water sector priorities focus on providing basic water supply and sanitation services to all Namibians, at an affordable cost. This will be achieved through the combined efforts of the government and the beneficiaries of water supply projects, based on community participation and the acceptance of mutual responsibility. International Water Cooperation Due to the need to negotiate the reasonable and equitable access of Namibia to the waters of the perennial rivers on the borders of the country, and to remain within the framework provided by the Revised SADC Protocol on Shared Watercourses, the SADC Water Policy and the SADC Water Strategy, it is necessary to consolidate the existing international cooperation on shared river systems. It is therefore recommended that as part of the IWRMP: DWA should continue with, and enhance active participation in water commissions on international river basins; Water quality should be part of the deliberations of international river basin commissions; Regional and international partnerships for IWRM/WDM research and technology should be established Cooperation should be established with international agencies and research institutions on unconventional water use technologies; The establishment of appropriately delineated shared groundwater basin committees should be facilitated and users and managers must be involved; The cooperation between user groups with common interests within the wider basin should be encouraged, for example the Basin Wide Forum between Angola, Botswana and Namibia on the Okavango. Although national institutions in the water sector have taken a holistic approach to integrated 3

5 water resources management, the policy directives and legislative instruments in place at the moment in other sectors remain highly sectoral and fragmented IWRMP, 2010a). With reference to the Global Water Partnership (GWP), the authors of the IWRMP (2010a) informed by reference to the experiences of other countries within the GWP, concluded that the most recent South African Water Act No. 36 of 1998 was considered to have a number of shortcomings with regard to governance issues but that the IWRM Strategy developed by South Africa is extremely comprehensive and is regarded by the GWP as one of the best examples produced by member countries. Legislation/Policy Constraints Sustainable resource use as an economic driver is reflected in the policy and legislation framework of Namibia. The EPSMO (2010) identified some common gaps in the policy, legislative and planning framework that are mirrored at a transboundary level and identified the most important ones as: inefficiencies in the land allocation and tenure system; inadequate EIA and SEA regimes absence of a harmonised land use planning framework for integrated basin management planning; lack of harmonised basin-wide water quality standards; lack of basin-wide climate change adaptation strategies. Policy and legal framework gaps and issues are comparatively easy to identify and address in practice whereas constraints resulting from a lack of institutional coordination, effective implementation and enforcement of existing policies and legislation is of a bigger constraint (EPSMO, 2010). Institutional Environment 1. The provision in the water laws for the establishment of basin-management committees in all three countries is regarded as of great importance. An example is the Okavango Basin Management Committee in Namibia, comprised of representatives from a wide range of national ministries, local government and other relevant stakeholders, ensuring that a diversity of management responsibilities and sector interests are taken into consideration in basin management planning. 2. A number of international, national and decentralised institutions are currently involved in providing, managing and, regulation of water resources in Namibia: A number of Water Commissions established under the existing Water Act, ratified by Parliament and under control of the DWAF on behalf of the Government. Namibia is party to a Water Commission on all the internationally shared watercourse systems in which Namibia is a basin state, except the Cuvelai basin. Water act No. 54 0f 1956; Mountain Catchment Areas Act no 63 0f 1970; 4

6 Water Research Act No 34 of 1971; Regional Councils Act No 22 of 1922; Namibia Water Corporation Act No. 12 of 1997; Government and Namibian water and sanitation services providers need to comply with international agreements and protocols regarding the abstraction of water from and the disposal of waste communities with a focus on participation and awareness as the goal of active engagement. However, the Directorate of Rural Water Supply stated in its Vision and Mission that the absence of engagement by communities as well as regional and national staff would lead to complete failure of the Community Based Management Programme. The need for legal experts well versed in the interpretation of the Constitution and related mandatory framework to explore this aspect in more depth was identified. The EPSMO (2010) review listed the common main governance transboundary problems as: Lack of harmonised water quality standards Insufficient basin-wide cooperation at different levels (particularly local level) Lack of enforcement due to insufficient institutional capacities and resources Inadequate EIA and SEA regulations and standards Insufficiencies in the land tenure systems Insufficient integration and coordination of planning and implementation at national, regional and local level Lack of effective implementation and enforcement Limited response to deforestation Lack of a comprehensive natural resource management plan Lack of an integrated tourism plan Lack of an harmonised land use and development plan Lack of integrated biodiversity management systems Inadequate basin-wide climate change adaptation and mitigation strategies Key Policy Drivers The drive for economic growth and food security is shared by the three basin countries in their overarching policy objective of poverty alleviation. The EPSMO (2010) review highlighted that a generic and legal and policy analysis could not determine with accuracy whether or not conflicts between policies within and between countries exists. The three main impact of such policies on the management of the Okavango basin s land, water and other land resources are a) changes in flow regime b) changes in the sediment dynamics, and c) changes in water quality. Key policy sectors that are likely to impact decision-making affecting water resource management in the basin in future: 1. Social Development Policies (Domestic Water Supply) 5

7 The EPSMO (2010) report recommends that policies aimed at increasing domestic water supply to the basin population have to be considered a priority and cannot be seen as in conflict with any other economic development policies. The Namibian policies and legislation pertaining to rural water supply are dealt with in Section 3.3 of this review. 2. Agriculture and Food Security Policies The expansion of agriculture (especially irrigation) is likely to be the key driver affecting future development options in the basin (EPSMO, 2010). Both Angola and Namibia have identified their parts of the Okavango basin among geographic areas in which increased agricultural production can be promoted. The issue of conflict with other policies, such as tourism or other natural resource use depends on scale, location and nature of irrigation developments and requires careful consideration within the overall basin development framework. The Namibian policies and legislation pertaining to agriculture and food security are dealt with in Section 3.1 of this review. 1. OVERVIEW OF THE LEGISLATIVE AND REGULATORY FRAMEWORK Policy, Legislation and Regulation The following section is intended to give a broad overview of the legal framework in Namibia, followed by relevant recommendations and conclusions. A listing of the laws and policies which may have a bearing, some albeit indirect, on the protection, management, control and usage of water within Namibia. The interaction of Namibia with its neighbours is based on its laws and policies for multilateral agreements related to the management of shared water resources. Figure X: A diagram showing the Legal Framework (Water) to be inserted here. Table X: A list of laws and policies (Water) to be inserted here. The existing water legislation in force in Namibia is the Water Act No. 54 of 1956, but will soon be replaced by an amended version of the Water Resources Management Act No. 24 of 2004, that was promulgated by Parliament, but has not yet entered into force. The Water Resources Management Act No. 24 (WRMA) is presently under revision. The sector priorities are also guided by a number of policies developed within the Ministry of Agriculture, Water Affairs and Forestry. These are: 1993 Water and Sanitation Sector Policy which resulted in the allocation of water related functions and responsibilities, the restructuring of the Ministry and the establishment of a Directorate of Rural Water Supply, as well as the creation of a bulk water supply company, the Namibia Water Corporation Ltd. (NamWater) National Water Policy White Paper which was adopted by Government after water sector priorities were re-examined and realigned under the Namibia Water Resources Management Review (NWRMR). The National Water Policy White Paper, hereinafter 6

8 referred to as the National Water Policy (NWP) has to be developed in line with IWRM principles and further elaborated, under the Water Sector Planning Process (2005), which highlighted the need to address development in four key water sectors i.e., irrigation, rural water supply, urban water supply and mining as well as the initiation and implementation of the basin management approach Water Supply and Sanitation Policy, which revised the allocation of responsibilities in the water supply and sanitation (WSS) sector, and gave specific coordination functions to the proposed Directorate of Water Supply and Sanitation Coordination in the MAWF. The Water Supply and Sanitation Policy, which was drafted after the promulgation of the WRMA and the proposed amendment of the Act, was found to be far more realistic in terms of a sound governance approach, particularly in the context of rural water supply and sanitation. It is considered to be a strong guiding framework that should be conclusively consulted before finalising either the IWRMP strategy or adjustments to the legal framework. The policies, guidelines, legislation and associated processes in other sectors and sub-sectors of the Namibian economy, such as environment and tourism, mining, agriculture and health have also assisted the MAWF in setting these priorities for the water sector (IWRMP, 2010a). Water Resource Management Act, No. 24 of 2004 Where the Water Act of 1956 fails to address Namibia s ecology because it was based on allocation principles used in well-watered countries on a distant continent and was born of a repugnant political regime, the Water Resources Management Act was developed after a long process of evaluation of Namibia s resources and its goals. The WRMA was designed to comport with the Namibian Constitution, and to replace the opaque, ad hoc approach of the Water Act with a more transparent, fair, and environmentally sound process intended to benefit all stakeholders (Legal Aid, 2009). The WRMA corrects the private ownership problem by declaring that ownership of water resources in Namibia below and above the surface of the land belongs to the State and commits the Government to ensuring that water resources are managed and used to the benefit of all people in furtherance of responsible management practices and following the 14 progressive principles meant to guide the Act s enforcement. These guidelines eliminate the confusion caused by the Water Act s vesting of private rights in some people under some circumstances and ensure compliance with Article 100 of the Constitution, which declares that the State owns Namibia s natural resources. The principles are derived from those discussed in the National Water Policy White Paper in They include equitable access to water resources by every citizen, in support of a healthy and productive life, harmonisation of human needs with environmental ecosystems and the species that depend upon them, while recognising that those ecosystems must be protected to the maximum extent, openness and transparency in management, recognition of the economic value of water resources, and prevention of water pollution incumbent with the polluter s duty of care and liability to make good. 7

9 Most significantly, the Act also recognizes the essentiality of water in life, and safe drinking water a basic human right, and is explicitly designed to encourage resource management to promote sustainable development. The essentiality clause may well bring the right to access to water under the penumbra of Article 6 s guarantee of the right to life. This would mean that Article 25, governing the enforcement of fundamental human rights, could perhaps be used to prevent misuse or overuse of water resources that would deprive downstream users of their right to access to water. Similarly, the promotion of sustainable development, coupled with the WRMA s harmonization clause recognizing the intrinsic worth of the environmental ecosystems and the species that depend upon them, ensures that policymakers will consider the natural environment and wildlife as independent stakeholders in the setting and enforcement of the nation s water policy, and that they will favor long-term planning over shortterm financial windfall. This is a change leaders have argued in favor of for years. Section 7 commands the Minister to establish a Water Resources Management Agency tasked with technical analysis, collection and dissemination of data, and oversight of the Act s implementation on the national, regional, and local levels. Section 11 establishes the Water Advisory Council, which is composed of a member from each regional management committee as well as other community organizations interested in water policy. The Water Advisory Council is tasked with advising the Minister on any relevant issues related to water policy development or review, water resources management, water abstraction and use and any other matters relating to water. These two entities are intended to ensure that the ad hoc approach and patchwork enforcement of the Water Act of 1956 is replaced by a streamlined and cohesive national policy and approach that takes into consideration the views of all interested stakeholders. Unlike the Water Act, the Water Resources Management Act outlines in the statutory text the information that must be included in an application for a water abstraction license and the steps that companies seeking such license must follow in order to qualify. Once in force, the WRMA will repeal and replace the entirety of the Water Act and its many successive amendments. The authors of the IWRMP (2010a) questioned the practicality of the WRMA in terms of mandated governance structures and the capacity for implementation and enforcement. One of the main issues raised is that each of the boards, committees, etc., must report directly to the Minister, which seems to be very impractical in view of the many duties of the Minister. Furthermore, each of these groups is proposed as a body corporate (in this instance it is not clear whether they will fall within the existing state structures as body corporates, e.g. Local Authorities, or alternatively as completely new parastatal entities). Reference was made to the complexity of such a governance structure in relation to the population size and in comparison to other countries with higher populations and the cost factor within the existing budgetary constraints. In view of the various aspects and shortcomings identified in the context of the proposed legislation, a number of recommendations were specified hereto (Section 5). The WRMA does not make provision for the existence of the Directorate of Water Affairs, nor abolishes it, and the creation of the proposed Water Resources Management Agency (WMA) has as yet not been achieved, this leads to a perceived uncertainty. 8

10 The implementation of the bulk water supply infrastructure development plans will to a large extent remain the responsibility of NamWater and as far as rural water supply and sanitation infrastructure development is concerned, the DWAF will still play a major role. These developments will take place within the framework of the basic national Water Master Plan in place and although the WRMA makes provision that basin management institutions must prepare water development plans, it is clear that not all basins will immediately have institutions that can do this work. The basin plans should also be guided by the existing national master planning that has been under implementation for more than 40 years and most probably not the other way round as perceived by many. The hard facts are that basin wide and national water planning will still be done at the national level for many years to come (The IWRMP (2010a). The establishment of Water Research Council is considered in the amendment process because the Act should be clear about the interpretation of the ownership of water in order to be consistent with the provisions made in the Constitution of the Republic of Namibia regarding the ownership of natural resources. Water Act, No. 54 of 1956 Although the Water Act of 1956 was promulgated by the South African Government for South Africa (DWA 1956), certain sections of the Water Act relevant to Namibia were made applicable in the country. The main purpose of the Water Act is to provide for the sustainable development and use of the water resources in the country and in terms of Section 3(1) of the Assignment of Power Act, 1990 (Act 4 of 1990), the powers, duties and functions in terms of the provisions of the Water Act, and the regulations made thereunder, have been assigned to the Minister of Agriculture, Water and Forestry and certain officials in the Department of Water Affairs and Forestry. The Water Act is administrated on behalf of Government by the Division of Law Administration (DLA) in the Directorate of Resource Management (DRM) in the DWAF in the MAWF. The Act gives the Minister responsible for water affairs, the power to take all the steps considered necessary for the investigation, development, control and utilization of water resources, as well as giving effect to the provisions of the Act. It would appear that this act makes no provision for the ideal of decentralisation as all powers are vested in the centralised power of the Minister as per Chapter 1 Section 2, provisions (a) through (m). What is of particular note within this listing of powers of the Minister is that there is no reference to any form of sustainable use planning or reserve protection. However, compared to the proposed WRMA with much more emphasis on sustainability concerns and related planning requirements, control nevertheless remain vested in the central authority because despite the provisions of the Decentralisation Enabling Act, in conjunction with the provisions of Chapter 12 of the Constitution which effectively brings the Regional and Local government structures into being, there is essentially little to no recognition of the delegation of powers let alone any form of devolution. By allocating water rights only in the context of a land owner, not in regard to the natural environment on which Namibians depend, the Water Act fails to recognize the downstream 9

11 environment as a user. The disregard of the environmental consequences of considering and permitting an exclusive use of such a scarce resource has tangible effects, both physical and economic. For example, the over-abstraction of water upriver results in the death of trees downriver. The loss of trees, shrubs and other vegetation in turn harms the wildlife and livestock that the farmers rely upon and that form the foundation of Namibia s attraction for tourists. This domino effect means that the myriad losses occurring downstream although seemingly of little immediate significance to upstream users who have captured the water, impoverish Namibia as a whole. (LAC, 2009). Water Service Providers in the legislative environment The IWRMP (2010a) established that there are a number of water service providers with different responsibilities that are all involved in water and sanitation infrastructure planning and development and called for the accommodation of these entities into the water policy, legislation and regulations. NamWater, responsible for bulk water supply; Department of Water Affairs and Forestry, responsible for resource management and rural water supply; Regional Authorities, responsible for small scale water supply to small communities; Local Authorities, some responsible for water supply, water reticulation and sanitation while others are just responsible for water reticulation and sanitation; Private Sector, responsible for water supply in agriculture, mining and tourism. 2. POTENTIAL IMPACT OF OTHER LEGISLATION ON WATER RESOURCE MANAGEMENT 3.1. Agriculture The expansion of agriculture (especially) irrigation is likely to be the key driver affecting the future development options for the CORB-Namibia. Other policies and legislation relevant to the agriculture sector: Communal and Land Reform Act 5 (2002) Environmental Management Act 7 (2007) Soil Conservation Act 76 (1969) National Agricultural Policy (1995) National Drought Policy (1997) Water Master Plan (2000) MAWF Strategic Plan 2007/8-2011/12 The Green Scheme (2003) Vision

12 The Agricultural Policy (1995) The assessment of this policy relates to possible impacts on water resources and other strategic objectives to improve the livelihoods of the population. In this regard the Cabinet approved (Decision No. 18th/ /004) a program of investment and promotion of increased food production through irrigation. Government recognised that the most effective way to reduce poverty and improve food security is to raise the productivity of its agricultural resources on which poor people depend for their livelihood. This can be achieved through irrigation development and the Government aims to bring the private sector to remote and underdeveloped areas, thereby building local capacity in terms of production, marketing management and general development. This led to the introduction of the Green Scheme and the adoption of the Green Scheme Policy, which was revised in 2008 (MAWF 2008c). In view of the fact that the irrigation is a major consumer of water resources, the policy on irrigation development for food security and job creation may impact adversely on the availability of scarce water resources. The Water Supply and Sanitation Policy provides for priorities for the allocation of water resources under competing demands. Priority 2 is the provision of water for economic activities, which includes irrigation, and the allocation of water must in each individual case be determined by the respective value, including economic multiplier effects by local value addition and social benefits in relation to the overall development objectives of the country. These issues should be accommodated in the proposed IWRMP. There is currently no transboundary allocation agreement with regard to the available river water resources between the three riparian states, Namibia, Botswana and Angola. In the absence of such agreement, the Government of Namibia (GRN) formulated a reasonable and internationally acceptable interim National Water Policy (2002) for abstraction of water from the Okavango River. The interpretation of the impact of this policy to the agriculture sector in the CORB-Namibia is further detailed in A6. The establishment of a Water Regulator and the Water Advisory Council provided for in the WRMA and an Irrigation Efficiency Group to monitor irrigation efficiency because irrigation is the largest single consumer of water was highlighted in the IWRMP (2010a). With regard to investments in natural resource management is was proposed in the IWRMP, 2010a that: Funding for water resource investigations should be increased; Funding water resource conservation should be included in all policies and programmes for the management and use of water resources; Existing drought policy is implemented and the drought management strategy be funded. 11

13 3.2. Urban settlements Other policies and legislation relevant to urban settlements (Local Authorities): Local Authorities Act No. 23 (1992) Namibia Water Corporation Act 12 (1997) Communal and Land Reform Act 5 (2002) Water Master Plan (2000) National Water Policy (2000) Water Supply and Sanitation Policy (1993) MAWF Strategic Plan 2007/8-2011/12 Vision 2030 Local Authorities Act, No. 23 (1992) The Local Authorities Act governs the responsibilities of the Local Authorities and one of the responsibilities of LA's is to supply water to the residents in its area for household, business or industrial purposes, as well as to maintain sewer and other sanitation systems. The Local Authorities are able to make their own regulations with respect to the above services. Where no such regulations exist, they must adopt the Model Regulations issued by the Ministry of Regional and Local Government, Housing and Rural Development (MRLGHRD). In section 30 of the Local Authorities Act the responsibility of local authorities for the provision of water and sanitation are clearly defined and includes the power to supply water to the residents in its area for household, business or industrial purposes and to provide, maintain and operate a system of sewerage and drainage works for the benefit of the residents the area under its jurisdiction (IWRMP, 2010a). Namibia Water Corporation Act, No. 12 (1997) Section 2(1) of the Namibia Water Corporation Act established a company to be known as the Namibia Water Corporation (NamWater) The objectives of NamWater are to carry out efficiently, the primary business of bulk water supply to customers, in sufficient quantities, of a quality suitable for the customers purposes, and by cost-effective, environmentally sound and sustainable means; and the secondary business of rendering water-related services, supplying facilities and granting (lease) rights to customers upon their request. The Act provides for the responsibilities of NamWater as well as to regulate its powers, duties and functions; to provide for a more efficient use and control of water resources; and to provide for incidental matters. NamWater was established as a commercial entity and has the duty to supply water and inter alia, must consider each application for bulk water supply by any potential customer, and subject to the availability of the required quantity and quality of water, must accept the applicant as a customer. In Part VIII, section 40, the provision of water to customers is deemed an essential service, but NamWater has the right to interrupt or reduce water supply whenever a condition of drought 12

14 causes an insufficient source yield; or when there is a breakdown of any water work; or if there is an emergency likely to endanger life or property. Sections 5 and 6 of this Act set out the Objects and Functions of the Corporation respectively. Section 5 requires the Corporation to act in the best interests of the Republic of Namibia. This is not defined further and it is perhaps worth noting that such a statement could be interpreted widely. It is perhaps reasonable to conclude that it is in the best interests of the country that NamWater provides appropriate water services with an affordable cost recovery regime instead of running the risk of bankruptcy and becoming dependent on Government bailouts. Section 6(2) of this Act requires that NamWater shall give effect to the relevant policies of the Government relating to water supply as communicated to the Corporation from time to time by the Minister. Interpretation of this clause could be as follows: NamWater could be seen to be a means for the Government to implement its water supply policies, but when such policies deal with subsidisation, this should not contradict the commercial nature of the Corporation. A further interpretation can also be that it is the sole responsibility of the Minister to instruct NamWater to implement Government s policies. Section 6(3) of this Act allows that the Minister may negotiate and conclude, on behalf of the State as the sole shareholder in the Corporation, the expectations of the Government in respect of the scope of business of the Corporation, its efficiency and financial performance, as well as the financial targets which the Corporation is expected to achieve over periods of at least five years at a time. This may be interpreted that the Minister may negotiate and agree with the Corporation on their expected profitability or financial performance and should NamWater be required to implement policies to supply subsidised water under Section 6(2), it would be reasonable to assume that such requirements and implications will be factored into the financial performance required of the Corporation, to be negotiated between the Minister and the Corporation. It should be noted, that even after NamWater has been in existence for more than 10 years, the agreement between NamWater and the Government, regarding NamWater s scope of business and financial performance, has still not been concluded. Such an agreement between the Government and NamWater should serve to provide a framework within which the general performance can be evaluated as well as guidelines according to which the income of the Company (water tariffs) can be determined. Part VIII section 42. (3) Sub-section (2) does not exempt NamWater from complying with any provision of the Water Act, 1956 (Act No 54 0f 1956) or any other law, which requires a permit or authority to be obtained in order to impound or utilise water from water resources. It has been proposed that regulations still to be drafted for the new Water Act of 2004 should oblige water service providers to standardise their costing systems and tariff codes in accordance with the categories stipulated in the UN International Standard Industrial Classification of Economic Activities, which are required for National Resource Accounting for Water and used by the Social Accounting Matrix Namibia Water Accounts (IWRMPJVN, 2010b). 13

15 There are new plans (a revival of older plans) to abstract perennial river water for transfer to consumers in the Central Area of Namibia (CAN) via the Eastern Water Carrier (EWC). Details about the amounts of river water to be abstracted, the period during abstraction will take place, and the locations of the abstraction point(s) upstream or downstream of the Cuito confluence are being discussed and not yet available. It is anticipated that abstraction volumes will be much smaller than the volumes expected to be required for Green scheme irrigation and that abstraction will not take place during low-flow periods as stipulated in the Interim Water Policy (2002). 3.3 Rural water supply Regional Councils Act No. 22 (1992) The powers and function of Regional Councils are prescribed in the Act and the responsibility of the RC's with respect to settlements are summarised in section 32 of the Act which states that the functions for water and sanitation, as stated in the Local Authorities Act, are applicable in settlement areas. As far as the management and control of settlement areas is concerned, the provisions of section 30, except for some paragraphs of subsection (1), sections 33 to 62, 66 to 76, 78, 79, 90, 91 and 94 of the Local Authorities Act, shall apply mutatis mutandis in respect of the management and control of a settlement area by a regional council as if such regional council were a village council as defined in section 1 of the said Act or if such settlement area were the area of such village council. Other policies and legislation relevant to rural water supply: Rural Development, Policy and Strategy (2001) Communal and Land Reform Act 5 (2002) Water Master Plan (2000) National Water Policy (2000) Water Supply and Sanitation Policy (1993) MAWF Strategic Plan 2007/8-2011/12 Vision 2030 If the implementation of the Millennium Development Goals (MDGs) continues at the current rate with steady financial and human resources backing the programme, it is predicted that 100 per cent coverage for both urban and rural areas can be achieved by the year The selected targets for the Rural Water Supply are: Increase water provision to the rural population from 75% in 2000 to 80% by 2006; to 85% by 2010; to 90% by 2015; to 95% by 2020 and to cover 100% of the population by 2030; Ensure that 50% of all water supplied achieves full cost recovery by 2006; increasing to 60% by 2010; to 70% by 2015; to 80% by 2020; to 90% by 2025 and to 100% by 2030; 14

16 Decentralise 95% of regional rural water supply resources to the Regional Councils by 2006 and 100% by 2010; Implement gender policy with respect to the water sector by The IWRMP, 2010a recommends active participation of users and beneficiaries in regulating water access and management in rural areas through the further establishment of the rural water point committees. Gender, water regulations and licences There are a number of regulations and licences that will be developed to support the implementation of the Water Resource Management Act 24 (2004), which is currently under revision. Many of these regulations are gender neutral but some of them provide opportunities for gender initiatives to ensure that women and youth are involved on an equitable basis. The requirements imposed on gender by the regulations to be promulgated as prescribed in terms of the water legislation, will only be known when that has been done. This issue therefore must be carefully considered at that time, particularly with regard to elements of water supply for which licences or permits will be required. Although the regulations prescribed in the Water Resources Management Act refer to a variety of issues, licences are primarily related to water abstraction (groundwater and surface water) and use and discharge of effluent. In all cases, the issuing and control of licences appears to be gender neutral and does not favour or disadvantage men or women but possibly youth. Some of the regulations, although not specifically so designed, provide an opportunity to enhance gender equity. These are mainly the regulations related to institutional development, e.g. water management institutions such as the Water Advisory Councils. Development of water service plans; water conservation and water demand management strategies also provide another opportunity to enhance gender equity. Similarly, control over the use of wetland resources (for communal, commercial and recreational use, development on river banks and the removal of material from a watercourse or nearby banks) provides opportunity to enhance gender equity. In terms of general water rights, water licences and cost sharing, in particular with regard to drinking water and sanitation, Namibia has several overarching statements, for example in the Constitution, the various water policies and Vision 2030, but little concrete documentation of strategies for implementation exists. In summary, it can be stated that Namibia is aware of and has many of the characteristics of a gender sensitive approach to water supply and sanitation. However, this approach is not generally accessible to a wide variety of people, including men, women and youth, nor does all in positions of power subscribe it to. Full water rights as intended in the high-level legislative framework are not fully implemented in a majority of instances (IWRMP, 2010). Ownership of Water and the Rights to Usage/Abstraction-Concept of Riparian Rights 15

17 It is contended that the ownership of water and the rights to usage are inextricably linked and are thus considered in concert within this sub-section. A comprehensive analysis of the rights regime and the historical background within common law which led to the codification of the concept of riparian rights as the cornerstone of the right to the use of public water which is vested in ownership of the land adjacent to waterways or watercourses was undertaken by the authors of the NWRMR report. They go on to reflect on the fact that this principle is entrenched in Act 54 of 1956 because although there is a distinct differentiation in the concept of ownership between public and private water in terms of the various categories (surface water and groundwater) the right to abstraction and usage tends to be dominated by the owners of the riparian rights (landowners). They thus contend that this principle places a severe constraint on the ideal of equitable access to water and the use thereof primarily as a result of the fact that the applicable landowners, despite being a very small minority of the total population, have access to the greater proportion of available water resources. On the other hand, bearing in mind the fact that the ownership of the water in all watercourses is vested in the State, it is within the rights of the State to control the access to this water. In terms of prevailing water resources management structures they do this by issuing abstraction permits, subject to the payment of an annual tariff, to the most logical and productive users of this water in the most efficient possible way to those landowners situated in the immediate proximity of such watercourses. It could be argued that they are primarily farmers who use this water for the purpose of irrigating some form of produce that contributes to the economy of the country thus fulfilling the principle of optimising the usage of such water. Riparian rights thus simply mean that the landowners in question would be the most logical recipients of abstraction permits in terms of the efficiency of delivery. In fact the legislation at that time even made provision for the transfer of water between properties e.g. from those at the source to others further away. It is up to the State to introduce management and governance mechanisms that ensure that this privilege is not abused and that the water so abstracted is utilised for the stated purpose and that in doing so the user optimises the productivity of such usage. Such water is thus a commodity owned and managed by the State in the best interests of the country. Given the above rationale it is thus contended, given the option to introduce relevant restrictive or constraining legislation, that the aspect of riparian rights should be included within any future legislation or regulations. It should also be borne in mind that any form of abstraction permit or licence issued within this context is considered to be an asset that enhances the value of the property to which it applies. The ultimate effect of this is that the overall capital value of property in the country as a whole is enhanced. Finally the fact that current land ownership is possibly concentrated in the hands of a minority grouping should not be reason to discontinue the concept of riparian rights, as it must be considered that this imbalance in the ownership of land is not guaranteed to last in perpetuity, especially in view of land reform policies. By removing the riparian rights allocated to any property could mean that future owners who are allocated or purchase this land could be 16

18 prejudiced by virtue of the loss of this asset that will allow them to abstract water in order to make their operations more productive. 3.4 Tourism The Ministry of Environment and Tourism finalised a Tourism Policy for Namibia in 2008 (MET 2008). This sets out the government objectives regarding the tourism sector. It places emphasis on ensuring that the tourism sector is: market driven and competitive with quality of service, involves local participation the maximum possible extent, is private sector driven and makes maximum use of private sector skills and capital, generates economic growth for the nation, is economically, socially and environmentally sustainable, adequately protects its natural asset base, and is supported by appropriate government investments in infrastructure marketing and training. Of particular note, in the context of the Okavango river basin, the Tourism Policy specifically addresses regional cooperation. The Namibian government aims to participate in Southern Africa Development Community (SADC) regional initiatives and seeks to promote Namibia's interests in the context of such regional cooperation. It strives to achieve reciprocity with neighbouring states on tourism initiatives, and to harmonise regulations relating to tourism. Government tourism policy specifically recognises the benefits of Trans-Frontier Conservation Areas (TFCAs) in conservation of the national and regional tourism asset base, as well as in the development of national and regional tourism. Of particular relevance to the Cubango- Okavango river basin is the Kavango-Zambezi (KAZA) TFCA which seeks to conserve spatially linked natural resources adjacent to Caprivi in Namibia, in Angola, Botswana, Zambia, and Zimbabwe. It aims to harmonise development in the TFCA and in particular to capitalise on the linkages between protected areas for maximal tourism development. Other policies and legislation relevant to tourism in Namibia: Environmental Management Act 7 (2007) Water Master Plan (2000) National Environmental Health Policy (2000) Water Supply and Sanitation Policy (1993) Tourism Master Plan (2000) Okavango Delta Management Plan Vision Mining Minerals (Prospecting and Mining) Act, No 33 of

19 The Minerals Act governs the process by which the Minister of Mines and Energy may grant permits for mineral exploration and mining throughout Namibia. Though that is the major focus of the Act, there are several provisions in the Act relevant to groundwater abstraction. First, after exploration has been completed and an enterprise wishes to commence mining operations, it must apply for, and receive, a mining license. In considering whether to grant a mining license, the Minister shall not grant an application by any person for a mining license unless the Minister is on reasonable grounds satisfied that the operation will ensure adequate protection of the environment. Furthermore, should a license holder seek to obtain a supply of water or any other substance in connection with such [mining] operations, the license holder must apply for special permission to do so from the Minister. Any applicant for a permit must list the likely environmental impacts of the project as well as the measures by which the applicant intends to mitigate damage to the environment occurring during the operation, and restore the environment after the operation s completion. If, after the operation is through, the Minister finds that the license holder caused environmental destruction, the Minister may require the holder to remedy that damage. Failure to do so can result in a maximum fine of N$100,000 and/or imprisonment for a period of up to five years. While the Minerals Act provides for some protection for groundwater resources, its primary focus is naturally on mineral extraction. Given the 1956 Water Act s jumbled regulatory structure and enforcement, the Minerals Act provides the Ministry of Mines and Energy with another avenue for stakeholders to prevent unauthorized or unsustainable abstraction before a mine is opened, and if such misconduct occurs, seek relief. Still, because the water-related mandates are general, and since the focus of the Act is elsewhere, the Ministry of Mines and Energy may in practice rely on the determinations of the Ministry of Agriculture, Water and Forestry on water issues (Lac, 2009). Traditional Authorities Act, No. 25 of 2000 The Traditional Authorities Act establishes the nation s Traditional Authorities as local governing bodies and permits each Traditional Authority to constitute itself and administer its affairs in the ways that it has customarily done. The WRMA requires that the Ministry of Agriculture, Water and Forestry consider the existence of any traditional community and the extent of customary rights and practices in, or dependent upon, the water resource to which an application for the licence relates before deciding to grant or deny a permit for water abstraction. Furthermore, as an interested party to any water abstraction activities proposed for its land, a Traditional Authority must be consulted and can object to adverse proposals under the Water Resource Management Act. No such duties are imposed under the 1956 Water Act. Though Traditional Authorities and the lands they govern may be affected by uranium speculation and mining operations, the current laws do not require active consultation or agreements that would respect the customary rights and traditions of the communities affected. Despite that absence of front-end participation, an examination of the Traditional Authorities Act reveals that it may impose limitations on abstraction and related activities (LAC, 2009). Water abstraction by mining company that leases the land 18

20 While this seems to redound to the mine owners benefit, the language of the Act does not make clear what is needed in the case of a mining company operating on land that the company does not own, as in the case of leases to mining companies or companies acquisition of mineral rights alone. In such cases, following the intent of the Act, it seems possible that the mine owner would have the right to abstract water. At the same time, however, the owner of the land, under Section 30(1) of the Act, could not sell or convey that water without a permit. Given the public interest in ensuring reasonable abstraction practices, and the wide discretion granted the Minister under the Water Act, an argument could be made that the mine owner must seek a permit for the water abstraction. This question has not yet been formally addressed, leaving a gap in the law and making it possible for Section 30(4) to be read to permit a mine owner operating under a lease or an agreement for the sale of mineral rights to engage in wholly unregulated water abstraction (LAC, 2009). Environmental Management Act, No. 7 of 2007 The Environmental Management Act ( EMA ), like the Water Resources Management Act, has a very wide scope, but is also stuck in limbo, not yet in force despite its passage in December 2007 In relevant part, all Government agencies are required to submit an environmental plan so that the new Environmental Commissioner and the Sustainable Development Advisory Council created by the Environmental Management Act can ensure that the Government works with a unity of purpose in ensuring sustainable resource management. Beyond this, it commands developers to gain clearance from the newly created Environmental Commissioner before proceeding with plans. Though the EMA leaves the list of activities needing environmental clearance up to the Minister of Environment and Tourism s discretion, it lists water use and disposal as an area which the Minister must regulate. Furthermore, one scholarly analysis of the EMA undertaken while the Act was still in draft form, concluded that the Act essentially requires that all ecosystems be provided with sufficient water to meet their ecological requirements or that adequate environmental flows are available to sustain water dependent ecosystems. To obtain groundwater abstraction permits that comply with the purposes and mandates of the EMA, a mining company will have to undergo a rigorous clearance process in addition to fulfilling the requirements of the WRMA. Other policies and legislation relevant to mining: National Policy on Natural Resources Conservation and Development (2007) Environmental Impact Assessment Policy (1995) Industrial Policy (1992) Vision RECOMMENDATIONS The following recommendations related to the policy and legislative environment were stipulated in the IWRMP, Thematic Report 01 (2010): 19