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COSATU Parliamentary Submission on theNational Water BillPresented to the Portfolio Committee on Agriculture, Water Affairs and Forestry,
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Table of Contents
- Introduction
- Tightening up enabling legislation
- Catchment Management Agencies (CMA’s)
- Pricing Policy
- Licensing
- Tradability of Rights
- Inter-basin transfers
- National water utility
- The Reserve and linkages to Water Services Act
- Conclusion
- Introduction
COSATU and SA Municipal Workers Union (SAMWU) welcome this opportunity to make a submission on the National Water Bill before the Portfolio Committee on Water Affairs and Forestry. Through the NEDLAC process, organised business and labour have had the opportunity to contribute to policy formulation underlying this important piece of legislation, nonetheless - as a number of issues were not resolved in NEDLAC - we welcome this additional opportunity to input into the process. We trust that members of the legislature will take our views on these matters into account as they finalise the detailed provision of the legislation before them.
There are many aspects of the National Water Bill which COSATU and SAMWU support. We support the fact that the legislation provides for:
- a framework in which it will be possible for everyone to have access to a basic amount of water;
- a framework for the pursuit of social and economic development goals;
- mechanisms to redress past discriminations and inequalities;
- the promotion of environmental sustainability; and
- the meeting of South Africa’s international obligations, particularly our human rights obligations. (1)
COSATU will defend these aspects of the Bill, and water policy in general, which advance the government’s programme to ensure access by all to affordable water. In this submission we will not restate the many positive aspects of the Bill. These have been identified in a number of NEDLAC submissions and other documents, and are generally commonly agreed on. Rather this submission will focus on what labour perceives to be problems and weaknesses with the Bill.
- Tightening up enabling legislation
The National Water Bill is, in the main, enabling legislation. It sets out a framework within which, and procedures through which, the Minister and government officials will be empowered to implement national water policy. It will only be through future processes of consultation and through the publication of regulations that many of the broad principles and policies will be given substance.
Given the ‘enabling’ character of the legislation, COSATU and SAMWU are of the view that Members of Parliament should see to it that both
- consultative procedures for the community, and
- an effective oversight role for parliament
are adequately provided for, as it is from these procedural aspects that much of the bill’s substance will flow.
- Consultation and community participation
The Bill provides for a process of involvement of communities and stakeholders in decision-making processes. This process is, however, limited. It generally involves the publication of proposals by the Minister or Director-General, with a provision for written comments to be submitted on these proposals within thirty days of publication. The Minister or Director-General must then consider these comments. (2)
In terms of the agreement at NEDLAC that relevant clauses of the Bill "be reviewed with the view to give expression to… effective and meaningful consultation" (3), the following matters should be taken into consideration:
- It is inadequate that the Minister or Director-General only have to "consider" the comments. There is no obligation on them to actually take the comments into account.
- A time-period of 30 days to comment is very short, and could make it difficult for those who don’t have many resources, such as rural communities, to comment in a meaningful way before the 30 days is up.
- Where DG is empowered to make preliminary determinations (e.g. of the resource quality objectives of a water resource or of the reserve), these preliminary determinations are not subject to a process of consultation and comment. The problem is, there is no time frame given by when the final determination, which includes the process of consultation, must be completed. There is therefore the possibility that the preliminary determination could continue for a long time. This undermines the attempt to make the process broadly consultative.
Mechanisms need to be found for making the process of consultation more meaningful and effective, including:
- As with regulations in the Bill, parliament should be empowered to request a report on the extent to which a specific comment has been taken into account, or if the comment was not taken into account, provide reasons why not; (4)
- the 30 day time-period for public comment should be extended; and
- a requirement that local authorities and NEDLAC play a role in the consultative process would facilitate more direct notification and participation of effected communities and constituencies.
- a definite time limit should be put on the preliminary determination. This could be achieved through setting a specified time period in which a final determination must be made.
- Effective Oversight role for Parliament
The Minster and Director-General are given wide powers to implement policy and make regulations within the broad framework of the Bill. While there was provision in the fifth draft for a Regulations Review Committee, which would have the power to scrutinise and reject regulations before they were promulgated, provision for this committee has been removed in the Bill. Instead there is provision for parliament to review regulations once they have been made to ensure inter alia that they are consistent with the Bill and the Constitution. In terms of the procedure, Parliament can (with reasons) reject the regulations, with the effect that the Minister will, within 30 days, have to repeal or amend the regulations
COSATU and SAMWU applaud the general thrust of this innovation which seeks to give greater effect to the principle of parliamentary oversight through strengthening the role of elected representatives in overseeing the content and substance of regulations. As stated earlier such a mechanism is crucially important in the context of the type of enabling legislation presently under consideration.
Our only concern is that the modalities of the proposed mechanism, which only allows parliament to reject regulations which are already in force, could lead to uncertainty and even the possibility of wasted expenditures. A mechanism which allows for parliamentary oversight of regulations prior to them coming into force would appear to be preferable. Further, such an oversight mechanism should be extended to also apply to the various prescriptions and determinations which can be made by the Minister and Director General throughout the legislation, for example, the Minister’s prescription of the system of classification of water resources (at s13) or the DG’s determination of the class of water resources and resource quality objectives for any significant water resource (s14). (5)
- Catchment Management Agencies (CMA’s)
- Establishment of catchment management agencies:
- Composition of CMA’s:
- that the Minister’s power to determine local government representation on the CMA governing boards (at s85(2)) should be based explicitly on a recognition of the important role played by local governments in widening access to water; and
- that there appears to be a technical error at s85(7)(e) where the words "disadvantaged persons or communities" should replace "disadvantaged persons or committees".
The legislation provides that catchment management agencies are meant to be established on the initiative of the community and stakeholders concerned, and if not, then on the initiative of the Minister.
The problems with this is that there could be significant delay before the establishment of certain CMA’s. It cannot be presumed that local communities and stakeholders will automatically see the necessity for establishing CMA urgently, or will have capacity to initiate them.
It is therefore proposed that, notwithstanding the need for effective mechanism to inform and assist communities in setting up CMA’s, a time limit should be outlined as to when all CMA’s should be established.
It is important that the composition of CMA’s take into account the interests of different stakeholders. In particular effective representation of disempowered communities and marginalised interests, such as those of subsistence farmers should be taken into account. Furthermore local authorities, which play a key role in ensuring access of water to all, should play a particularly important role in the CMA.
These concerns appear to be broadly taken into account under s85 of the proposed legislation, save to say:
- Pricing Policy
COSATU and SAMWU support the fact that the Bill’s financial provision (in Chapter 5) set out progressive, equity-based parameters for establishing a pricing policy, including the possibility of price differentiation amongst geographic areas and amongst different categories of water users and water use. However, these parameters are broad, lack specificity and – as with other aspects of this enabling legislation – much will on how these parameters are to be put into practice. From our point of view the Bill’s parameters will prove appropriate only to the extent that, in practice, they provide for effective cross-subsidisation, price differentiation and other mechanisms to promote social equity and redress past inequitable and discriminatory access.
We strongly support the principle of cross-subsidisation and believe that it could be strengthened by explicitly supplementing the provision allowing for pricing policy to differentiate between different categories of users (at s58(4)), with an explicit reference to the possible use of differentiating mechanisms, such as, block tariffs. For instance, block tariffs would allow for cross-subsidisation, without extra-administrative costs, between big industry, commercial farming and small subsistence farming.
- Licensing
- Time-frame for establishing schedule for water use allocation:
- Renewing and reviewing licences :
The responsible authority is under no obligation to immediately put in motion the process of preparing a schedule for water use allocation and compulsory licensing. The legislation simply states that this process can be put in motion if the responsible authority considers it desirable in order to achieve one of a range of goals. It could take many years for the responsible authority to put this process in motion. This could have serious implications for goals of equitable access to water and redress for past discrimination.
It is, therefore, proposed that there needs to be some requirement on responsible authorities to prepare a schedule for water use allocation within a specified time-frame.
- Health and Safety should be taken into account for Licensing and Authorisations
Provision is only made for reviewing a licence at the time periods specified in the licence. (clause 51) This could lead to a situation where a licence is issued for a certain time period, but before that time period is up, the responsible authority recognises that in order to meet some of the other goals of water allocation (for instance, redressing past discrimination, ensuring equitable access to water, or any of the other criteria established in clause 51 (2)), water use should be differently allocated. They could be prevented from reviewing the licences issued for a number of years.
The only provision made for an early renewal or amendment of the licence is if the licensee requests it (clause 54). There are strong incentives for the responsible authority not to amend the conditions of the licence, even if he/she thinks that this is necessary in order to protect water resources, ensure equality and so on, because compensation will have to be paid to the licensee if changes to the licence destroy or severely prejudice the economic viability of any undertaking for which the licence was originally issued.
Business has argued that compensation should not be restricted to situations where the economic viability of enterprises would be severely prejudiced, but COSATU and SAMWU would strongly oppose any attempt to make this clause less restrictive. As it could, in fact, be argued that it is not sufficiently restrictive, in that it opens up the way for industry to be paid out large sums of money which should rather be spent on water development.
In terms of NEDLAC agreement it is important that the criterion "health and safety of persons" be added to the list of factors (at s28(1)) which is responsible authority is to take into account in exercising its powers to issue a general authorisation or licence. (6)
- Introduction
- Tradability of Rights
Labour is strongly opposed to the idea of water rights being traded. We believe that if a situation is allowed to develop where profits are to be made from water, this will make water less accessible to poorer communities, as profiteering by private intermediaries will push up the cost of water. At NEDLAC, the parties deadlocked on this matter, as business interest are pushing hard for the possibility of tradability of water rights, and COSATU and SAMWU now look to parliament to assert this matter of principle. Our interpretation of the Bill at present is that it provides for the possibility of trade in water rights. While it would appear that there can be no trade in the Reserve (identified to satisfy basic need and environmental imperatives), the Bill provides for regulations to deal with "transactions in respect of authorisation to use water" (at s27(1)(1)) and provides that the allocation schedule to be drawn up by responsible authorities should reflect the quantity of water to be allocated by "public tender or auction" (at s47(e)).
In COSATU and SAMWU’s view the Bill should be amended so that it does not provide for trade in water rights. During this period of reconstruction and development it is important that water regulatory framework be clearly defined in terms of public interest imperatives and no loophole should be allowed to exist through which narrow private interest can begin to dominate a new, and as yet, untested system of national water regulation. We are firmly of the view that at present in South Africa, all water has social benefits, and needs to be allocated, by the responsible authority on that understanding.
- Inter-basin transfers
The impact on conservation an on rural communities of inter-basin transfers need to be taken into account. Environmental Impact Assessments need to be done before any inter-basin transfers take place.
- National water utility
We are opposed to a national water utility at this stage. The chapter on this proposal in the bill is too vague and undefined for us to have any clear understanding of its implications or purpose.
- The Reserve and linkages to Water Services Act
In terms of the NEDLAC discussion concerns were raised that the concept of the Reserve may be undermined as a result of the specification that the Reserve would be established out of a "significant" part of the water resource, and that the determination of what was meant by "significant" in this instance would be defined by the Director General, with the possibility of an appeal procedure to the Minister.
As a result it was agreed that further consideration would be given to defining what is meant by a "significant" part of the water resource and that linkages between the Reserve and the provision of water through the Water Services Bill should be made.
The National Water Bill is meant to be the overarching legislative framework within which more specific pieces of water legislation are placed. In other words, the Water Services Act should fit within the legislative framework established by the National Water Bill, and there need to be clear links drawn between the two pieces of legislation indicating where the areas and responsibilities of the two begin and end.
These linkages, however, are not made clear in the National Water Bill.
For instance:
- Link between Catchment Management strategy and water services development plan:
The Catchment Management Agency is responsible for establishing a strategy for the protection, use, development, conservation, management and control of water resources within its management area. Clause 10 sets out the areas and issues that the content of the strategy must take into account. While clause 10 (f) talks about the need to take account of "any relevant national or regional plans prepared under any other Act.", there is no specific mention made of the need for the Catchment Management Agency to take account of the water services development plan that municipality are required to draw up in terms of the Water Services Act.
- Reserve:
- There is no clear mechanism for ensuring that local authorities get access to water in the Reserve which has been set aside to meet basic needs.
- It is clear what price, if any, local authorities would have to pay for water that is part of the Reserve.
- Relationship between CMA and Water Service Institutions established in terms of the Water Service Act
In neither the National Water Bill nor the Water Services Act, is the relationship between the CMA and the water service institutions established in terms of the Water Services Act spelt out.
The National Water Bill indicates that when appointing the members of the Board of the CMA the Minister must balance different interest among them in the interests of local government.
AT no point however is a structural relationship between the CMA and Water Service institutions, such as,. Local authorities or Water Boards established.
COSATU and SAMWU thank the committee for the opportunity to make a submission on this important piece of legislation. We would welcome the opportunity to further clarify the issues raised in this submission should members of the committee believe this to be necessary.
Footnotes:
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See also Nedlac agreement regarding "Intentions of the Bill which Enjoy General Support" (at para 2)
The following substantive matters are to be decided following consultative processes:
- Development of National Water Resource Strategy;
- Development of Catchment Management Strategy;
- Pricing Policy;
- Determination of Reserve;
- Establishment of resource quality objectives for significant water resources;
- Determination of general authorisation;
- Preparation of allocation schedule;
- Disestablishment of Catchment Management Agencies;
- Establishment of Water User Associations;
- Determination of Stream Flow Reduction Activities;
- Declaration of Controlled Activities (beyond those catered for in Act);
- Establishment of Catchment Management Agency.
