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Legal and Regulatory Setting in IWRM

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Legal and Regulatory Setting in IWRM Powered By Docstoc
					       Legal and Regulatory Setting


         Regional Training of Trainers Workshop
             National Water Resources Institute, Kaduna, Nigeria
                                  6 – 10 December 2004




                                            J. Goldface-Irokalibe
   West Africa Network for                    Faculty of Law,
Capacity Building in Integrated
Water Resources Management           Ahmadu Bello University, Zaria, Nigeria
                           Outline of Presentation
   • Background
   • Legislative Summaries (customary & Statutory
     Laws)
   • Legal Framework – Need For New Approach
   • Encouraging Private Investment
   • Fair Regulatory Framework
   • International Law
   • Conclusion
S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   2
                                              Background

   • Fragmented responsibility
   • Lack of Inter-sectoral Co-ordination
   • Need for Proper blend of Institutional,
     Policy, Economic, Financial and Regulatory
     Framework



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                           Legislative Summaries
   A : Customary Laws (Traditional Practices)
   • Right to water is communal
   • Water right is subject to reasonable use
   • Private right to water not recognized for
     domestic use
   • Restriction on water rights preserves points of
     stream from pollution
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                      Customary Laws (Contd.)
   General
   • right to water abstraction universal
   • water courses never bought and sold
   • fishing rights as opposed to ownership right
     over water likely to lead to disputes
   • urbanization and reception of statutory laws
     have introduced contradictions and difficulties
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                 Analysis of Customary Laws
                        and practices
      Main Features
      • Ownership
        – water is res ominium communes

      • Pollution Control/Environmental Degradation
         – rule against farming within specified distance
         – rule against bush burning
         – communal clearing and dredging
         – Vigilantes
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               Analysis of Customary Laws
                 and practices (Contd.)
      • Enforcement
             •Chief or council of elders
             •Fine and/or seizure of catch
             •Village/town deity
             •Private well owners may bar offender
             •role of vigilantes


      •Role of Women
             •Managers of domestic water
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                                         Statutory Laws
•   Constitution of the Federal Republic of Nigeria, 1999
•   The Waterworks Act, 1915
•   The Minerals Act 1917 Cap 226 LFN
•   The Public Health Act, 1917
•   The Oil In Navigable Waterways Act, 1968 Cap 337
•   LFN
•   The Petroleum Act, 1969 Cap 350 LFN
•   The RBDA Act 1976 (as amended) Cap 396 LFN
•   The EIA Decree No. 86, of 1992
•   The Water Resources Decree No. 101 of 1993
•   The NIWA Decree, No. 13 of 1997
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               Assessment of Statutory Laws
   • Uncoordinated approach to water law administration
   • Combination of Water Supply and Regulatory Functions in a
     single institution
   • Fragmentation of water resources development policy issues :
     abstraction, pollution control and watershed management:-
   • Regulatory and monitoring machinery diverse, diffused and
     weak
   • All laws (Federal & State) are rule oriented
   • No proper provisions and mechanisms of inter-sectoral
     coordination, tariff setting and conflict resolution
   • Non-recognition of role of private sector and communities as
     stakeholders

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                                    Legal Framework
                                        Need for New Approach

   • Need to establish and enforce standards, regulate
     and control criteria for:
          – Pollution control
          – Watershed management
          – Environmental preservation




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                                    Legal Framework
                              Need for New Approach (Contd.)
   - To evolve new guidelines to accommodate population
      growth
   - To change common belief that water supply is free social
      service
   - To evolve private sector participation/partnership in water
      and sanitation sector
   - To redesign laws and regulations that are management
      oriented rather than rule oriented
           Rule oriented legislation ignores stakeholders’ interest
           Rule oriented legislation emphasizes penalties and prohibitions.
           Management oriented legislation emphasizes incentives for
            rational use and compliance

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                                    Legal Framework
                              Need for New Approach (Contd.)
• To evolve legislation that accommodates consultation between
  all stakeholders
• Absence of Policy Framework results in:
      – Fragmented responsibility for water
      – Lack of inter-sectoral coordination
      – Need for proper regulatory framework
• Regulation-Tri-dimensional perspective of challenges are:
      – At the federal level, planning for conservation,     preservation and
        sharing of limited water resources and dispute resolution
      – At consumer level for tariff setting, water quality control, and consumer
        protection
      – At state and local level to regulate private sector, and protection from
        political actions

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                                    Legal Framework
                              Need for New Approach (Contd.)
• Pollution
     –    Need to monitor fresh water resources
     –    Provide enforceable legislation
     –    Setting quality standards
     –    Abatement of point and non-point sources of pollution
• Environmental Degradation
     – Protect water values through law that:
            •   forbid watershed degradation
            •   wetlands degradation
            •   destruction of acquatic, estuarine and marine habitats
            •   promote water and environmental friendly policy that will foster sustainable
                development



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           Encouraging Private Investment
   • Investors to be guaranteed regulatory
     mechanism free from undue interference
     from vested interest groups
   • Synchronising Federal and State laws to
     ensure availability of raw water
   • Government to shoulder some
     responsibility in cushioning the effects of
     investors financial risks
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           Encouraging Private Investment
                     (Contd.)
• Options of private sector participation selected should
  vary from lower to higher ones to suite specific
  situations
• Flexibility of arrangement during tenure should be
  ensured to protect consumers interest
• Tax concessions on imported equipment to be
  ensured during the initial period of the arrangement
• Sanitation should be carried along in all partnership
  arrangements between government and the private
  sector

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                   Fair Regulatory Framework
   • Ensure Independence of Regulatory Agency
     through:
          – Insulating of Agency from any conflict of
            interest
          – Guarantee continuity during change of
            government
          – Instilling confidence in public and private sector
            suppliers
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                   Fair Regulatory Framework
                            (Contd.)
   • Break the link between Political/Bureaucratic
     Interests:
          – Separate production and distribution responsibility from
            responsibility for building water infrastructure
          – Ensure Government Agencies and highly placed
            persons no longer can refuse to pay for water
            consumption
          – Enhance desired technical manpower in water industry




S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   17
                   Fair Regulatory Framework
                            (Contd.)
   • Participatory Management to be the basis
     for regulatory framework:
          – Focuses on the interest of consumers
          – Protects investors from arbitrary actions
          – Eliminates cost of regulatory interventions
          – Provides incentives for enhanced efficiency


S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   18
          UN Law on The Non-Navigable Uses of
            International Water Courses 1997
                                     Right to                   Duty to co-        Duty to
                                    Participate                  Operate           protect
Objective                            Art. 3, 4                   Art. 8, 9          Art.23
 Art. 1                               Equity                   No priority        Regulation
                                     Principles                  of use          installations    Dispute
                                      Art. 5,6                   Art. 10          Art. 24-26     Settlement
        Definition                                                                                Art. 33
                                    Duty not to             Planned           Emergency
         Art. 2                     cause harm              measures          Situations
                                       Art. 7               Art.11-19         Art. 27, 28

                                           International

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                Law on The Non-Navigable Uses of
                   International Water Courses
   • Purpose : Protection, Preservation and Management
   • Art 3 & 4 : Defines when a water course agreement can
     be entered into;
                 • Does not affect previous agreements;
                 • Should be harmonized;
                 • Riparians may enter into agreement
                 • Can be about a part of the water unless it affects other
                   riparians;
                 • This protects the rights of those not parties to existing
                   agreement;
                 • Every watercourse state is entitled to participate.
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             Equity and Reasonable Utilisation
  • Equitably and reasonably, for optimal and
    sustainable use consistent with protection
  • Equity:
         – Geo, hydrographic, hydrological, climatic and
           econological;
         – Social and economic needs
         – Population dependent on the water
         – Effects of the uses
         – Existing and potential uses
         – Conservation etc and costs
         – Alternatives
         – Weights
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                                            Environment
   • Obligation to protect and preserve
   • Obligation to reduce pollution through
     harmonization of policies, setting joint
     water quality objectives and criteria,
     techniques and practices, developing lists
     of substances;
   • Not introducing alien species
   • Protection of marine environment
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                                           Organisations
   •    Joint Management Mechanism
   •    Regulation and costs
   •    Installations
   •    Action in case of emergency situations
   •    Protection during armed conflict



S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   23
               Regional Treaties (W. Africa)
   • Treaties for the Niger Basin Authority
   • Treaties for the Lake Chad Basin
     Commission
   • Treaty for the Niger – Nigeria Join
     Commission



S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   24
                                                Conclusion
      • Water resources of the country to be put to
        beneficial use to the optimum level of which they
        are capable

      • Funds – Public and Private – for the promotion
        and expansion of the beneficial use of water
        resources should be invested to the end that
        serve the best interest and welfare of the people



S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   25
                                Conclusion (Contd.)
   • Cadre charged with implementation and
     enforcement must have the right orientation,
     correct grasp and social commitment

   • Regulatory capacity under a new legal and
     regulatory framework can prove decisive of which
     private sector participation option that would be
     preferred


S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   26
    On This Note, Permit Me To :
        Pause awhile and say :


              Thank You For Listening


S09-Legal & Regulatory Setting J. Goldface-Irokalibe, 7 Dec. 2004   27

				
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