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Water Allocation Reform in South Africa: History, Processes and Prospects for Future Implementation
Expanded Title:Inequalities in access to land and water in the country arose as a result of prevalent laws initially under European Colonial rule and later under the apartheid regime. Combined, these resulted in blacks being denied access to water for productive use. Reforms, based on the principles of equity and fairness under the democratic government have seen a number of programmes and policies aimed at redressing the imbalances of the past. Among these are the Reconstruction and Development Programme, Land Reform Programme as well as reforms in the water sector. The National Water Act (NWA) is the main instrument that governs access to water for productive use. The NWA seeks to ensure that the country’s water resources are protected, used, developed, conserved and managed in accordance with the principles of efficiency, sustainability as well as equity. The NWA has been hailed internationally as a “pioneer in a wave of international reform in the water sector and there are expectations that it will set the foundation for similar reforms in other countries in the region. The main point of departure of the NWA from earlier legislation is that it abolishes the principles of Riparian Rights previously recognized although pre-existing use is recognised provided it was legal in the two years prior to its promulgation. The NWA also removes the notion of private owner and instead recognizes water as a national resource, owned by all the South Africans held in trust by the state with the Minster as the agent. The NWA provides the legislative framework for Water Allocation Reform (WAR). Another important document is the Strategic Framework on Water for Sustainable Growth & Development which is based on a vision of “a robust, accountable and people-centred water sector, which ensures that water security, supports social transformation and economic growth without compromising environmental integrity”. In this regard, Water Allocation Reform is recognized as having a potential to contribute towards growth and development thus raising the need for accelerated reallocation of water for productive use in order to enhance diversification of livelihoods among the rural poor. A number of factors make water reform in the country a necessity rather than an option. These include: • Water scarcity resulting from unevenly distributed rainfall in space and time combined with exceedingly high evaporation rates • Present and long term effects of climate which are expected to result in a drier, hotter climate • Shared water resources and the need to meet transboundary water requirements in line with international agreements • Stressed and over allocated water resources, with ten of the nineteen Water Management Areas already over allocated • The skewed distribution of water allocation in favour of whites combined with the fact that the country has almost reached its full irrigation potential. These, against the background of national rural development goals and the critical role of water in their achievement make a strong case for WAR. WAR is aimed at promoting beneficial use of water in the public interest in a manner that supports fair and equitable allocation of water resources to all South Africans whilst promoting social stability and investor confidence. Whilst there are other productive uses of water that can be addressed by WAR, this discussion will be largely focussed on agriculture. The NWA makes provision for a number of water entitlements i.e. i. The Reserve: Water required to meet basic human needs as well as for carrying out ecosystem functions. ii. Schedule 1 Use: Limited quantities of water required for household use, watering of stock etc. with low potential for negative impacts on water resources iii. General Authorisations: Larger quantities of water with potential for negative impacts. Authorization can be granted for a specific type of water use, and/or any category of user. iv. Licensed Water Use: Larger volumes of water for commercial use. Whilst a number of countries have recently or are in the process of instituting reforms in the water sector, the South African process stands apart in that is has paid particular attention, at least on paper, to distributive justice, taking into account both social and environmental needs. The study makes a number of suggestions relevant to roll out of WAR. These include: • In those parts of the country that do not have significant land reform programmes e.g. the Western Cape there is a need for DWA to take a more proactive approach to drive WAR and may thus need to prioritise them for compulsory licensing • It is important that coordination and data sharing between national departments to facilitate understanding of common strategic objectives is promoted. • It should also be noted that some of the Figures shown in Table 1 are based on both land under claim as well as land claims that have been settled and as such are more reflective of the situation once all land claims have been finalised. The lesson from the point of view of WAR is that these two programmes cannot be run in isolation and must be properly coordinated for the objectives of reforms to be realised. A number of countries are currently undergoing or have recently undergone reforms in the same manner as South Africa. Because South Africa has a unique history and socio-economic dynamics, her reform process has equity as one of its goals which makes it unique to many of the other processes, there are still lessons to be learnt from reform processes elsewhere. For example, similar to the South Africa process, the Australian process recognizes the environment as a legitimate water user. The China process has a well defined institutional structure with clear responsibilities with regards to water allocation at various levels. Another point of consideration is the tiered fee structure which enables, concessions to be made for poorer sectors of the population whilst giving them access to reasonable quantities of water to meet their needs. Israel provides a case study for Water Conservation and Demand Management through a combination of recycling effluent for agricultural purposes, use of water efficient crops as well as water efficient technologies that are developed through participatory processes with farmers as partners thus enhancing chances of uptake and sustained use. Successful registration of Water User associations is an important requirement for decentralisation on management of water resources. This is an area that South Africa is struggling with whilst countries such as Mexico and some states in India have had success in using an extensive public awareness initiatives in partnerships with civil society and the private sector. The National Water Act contains a number of provisions that are relevant to water allocation reform which may have potential for conflict. These include recognition of pre-existing rights, compulsory licensing, curtailment of water use and compensation for curtailment as well as the possibility of water trade. The writing of the NWA unfortunately leaves a lot to interpretation and may perhaps be part of the cause for the perceived reluctance on the part of DWA to move the WAR agenda forward effectively. Whilst some pilots were initiated as far back as 2005, there is very little to show in terms of progress. One of the main challenges here appears to be the laborious processes involved in water use validation and verification. This will require that these processes are simplified and streamlined as the resource requirements are also too high. Part of the reluctance on DWA’s part may be ascribed to the fear of litigation. International experience shows that litigation is an unavoidable part of interpretation of water legislation. In California for example, the state routinely relies on litigation because the Water law is also written such that a lot is left to interpretation. Further, whilst there may seem to be conflict between the need for curtailment of water use entitlements and the constitutional protection of property, international experience in California, Australia, Spain and New Zealand shows that this is not automatic. Courts in these countries have in recent cases ruled that curtailment may be carried out where necessary to meet water allocation goals which can be interpreted in the “public interest”. The South African scenario cannot be known until such time DWA and runs an actual pilot. This will also help to bring out any weaknesses in the legislation so that they can be addressed. It is cause for concern that although a full implementation of compulsory licensing has not as yet been implemented, DWA is already indicating a strong and immediate desire to amend the NWA, ensuring equity in water allocation being one of the objectives of this amendment. We would like to suggest that amendment of the Act without a full scale implementation and litigation if necessary would be premature. Amendment would be better off informed by the judiciary as this would highlight any weaknesses in the NWA. In the meantime, efforts of the Department would be better spent in simplifying the complex and resource intensive procedures for reserve determination as well as validation and verification in line with available capacities at all levels. Water markets may look attractive when the reported successes in Australia and other countries are considered. However, the socio-economic context of the country, especially with regards to the most vulnerable groups warrants some caution. In Chile for example, a range of benefits have been reported by various authors. However, the impacts on the poorest farmers have been regrettable. Most of these farmers have only entered markets as sellers and consequently, a significant proportion have lost their water rights which have been acquired by more affluent commercial farmers and companies. The process also failed to cater for environmental requirements with the result that some rivers have been rendered dry by corporations. We would like to suggest that the current limitation of rights to water as provided for in the Constitution to water to meet basic needs may be conflict with the right to food because for a significant proportion of the population, access to adequate water is a prerequisite for food production. Whilst the NWA allows for schedule 1 use of water for household level productive uses without a license, these uses are seen as permissible uses not as rights thus removing the obligation of the state to deliver on them.This has the effect of working against the poorest and most disadvantaged sectors of society. Whilst the share of agriculture in the GDP has been declining over the past few years, this sector continues to be an important source of employment and livelihood for a significant proportion of the rural poor. Other potential ventures for productive use of water include brick making, hair salons, poultry etc. A number of government departments are running programmes aimed at supporting such business ventures. Among these are included: • DWA’s Programme of Assistance for Resource Poor Farmers • The Comprehensive Support Programme of the Department of Agriculture and other support programmes under the now Department of Agriculture, Forestry & Fisheries (DAFF) • The Small Enterprise Development Agency of the department of Trade • The Khula Fund Despite these initiatives, rural enterprises, including smallholder farming continue to struggle thus the risk of WAR failing to make an impact in rural livelihood development a reality. This then raises the need to reflect on past successes nationally and internationally. Government schemes such as the Vaalharts were developed with the aim of stimulating rural development whilst reversing the then prevalent of whites migrating to towns in search of employment. These schemes were characterized by: • Well developed irrigation infrastructure guaranteed by the state • Adequate water supplied at subsidized rates • Agricultural plots were large enough to ensure viability- up to 25ha per farmer • Additional support was provided through subsidized inputs • Markets were assured through cooperatives • Mentorship and opportunities for social upliftment • Guaranteed loans (by the state) • The probationary period was long enough to ensure “maturity” of farmers - the approach of securing farms under the land reform programme and leaving them to their own devices with occasional visits that has previously been used in the country was probably one of the shortcomings that have led to the failure of many of these initiatives. Farm incubators, widely used in the USA and Canada are run along similar principles. These have been shown to be successful in training farmers. Similar programmes for emerging farmers who want to make the transition to commercial farmers may be more beneficial. For those who wish gardening predominantly to ensure food security, programmes such as DWA’s Rainwater Harvesting Programme with appropriate support should suffice. It is important however that stakeholder departments are adequately coordinated to avoid redundancy. Recommendations • There is a need for closer coordination between land reform and water allocation reform with land reform being the driver for water allocation reform. • Whilst a significant amount of water will be transferred to HDIs through land reform, alternatives will need to be explored where land reform occurs in dry land areas where minimal irrigation occurs. • Alternatives to present models used for reserve determination as well as validation and verification which in addition to being time consuming and resource intensive are largely inconclusive need to be identified. • Improvements need to be made on current institutional arrangements and coordination between different stakeholder departments. • Processes must be put in place to develop a shared understanding and vision for WAR between DWA Head Office and regional offices as well as other stakeholder departments. Similarly, areas that need further clarification, such as beneficial use in the public interest need to be similarly understood. • The targets of WAR need to be redefined in line with what the programme seeks to achieve in the long term. Rather than focussing on distribution of water, these should be defined in terms of the impacts it is aimed at achieving. • It is important to run a full scale compulsory licensing process in order to capture any lessons and identify weaknesses in the NWA, through the courts if necessary in order to guide its amendment. Further, potential areas of conflict must be clarified through the judiciary. Amending the NWA without this clarification • Simpler alternatives to present models for reserve determination as well as validation and verification which are in addition to being time consuming and resource intensive must be found. • Tracking of gains made with WC/WDM, working for water and other related initiatives and closer alignment between WAR. • More concerted efforts need to be made to empower HDIs on the provisions of the NWA and how they affect them as well as on general principles of IWRM.
Date Published:01/10/2011
Document Type:Research Report
Document Subjects:Water Resource Management/IWRM - Planning and development, Water Resource Management/IWRM - Water Governance
Document Format:Report
Document File Type:pdf
Research Report Type:Standard
WRC Report No:1855/1/11
ISBN No:978-1-4312-0159-4
Authors:Msibi MI; Dlamini DS
Project No:K5/1855
Originator:WRC
Organizations:Sinelwati Scientific
Document Size:1 371 KB
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