W ATER M ANAGEMENT S TRATEGIES Governments responsibilities

W ATER M ANAGEMENT S TRATEGIES Government’s responsibilities as public trustee

• Section 24: • Protection of environment • Intergenerational equity • Sustainable development • Section 27: • Right of access to sufficient water • Reasonable legislative and other measures; available resources; progressively realised National Water Act • Union Irrigation and Conservation Water Act 1912 • Water Act 1956 • Public water v private water • Riparian land owner Constitution • Perennial water = res publicae – owned by State • Rights granted by State • Retief v Louw 1855 – ownership of water incidental to land ownership Pre-Constitution Water Law • Distinction between public and private water • Res publicae v res communes omnium • Public water = commercial purposes • State = owner • Public = use right Roman-Dutch Law 1652 Roman Law History of legislation of water in SA • Abolished private ownership of water • Allocated rights to use water by the State • Introduces concept of trusteeship and public ownership

SECTION 3 OF THE NATIONAL WATER ACT

Public Trust Doctrine introduced? Res publicae back? Trusteeship? Trustee, custodian, public benefit, nation

DEFINITION PROBLEMS CONCLUSION RES PUBLICAE PUBLIC TRUST DOCTRINE TRUSTEESHIP State management Public use State is trustee Public is beneficiary State is trustee Public interest Antiquated Irrelevant Inconsistent Applied differently from State to State Uncertain: how do we interpret these duties in section 3? Assumption that it is incorporated into our legislation is potentially wrong Best route: can be interpreted and developed on a caseby-case basis. Can develop in terms of Constitution and modern requirements Not necessary

Res publicae Trusteeship Public Trust Doctrine What-A-Mess?

Public Trusteeship? Content of duty • • • Protect Use Develop Conserve Manage Control Standard 1. SUSTAINABLE 2. EQUITABLE 3. BENEFIT 4. CONSTITUTIONAL

Standard: satisfying elements of sustainability Economic Social Environmental

Social • Beneficial to community • Improve Infrastructure • Promote Constitutional values (dignity, etc. ) • Redress socio-economic, power inequalities • Community involvement

Duty Standard Criteria Considerations Economic Sustainable Environment Community involvement Social Improvement of quality of life Uphold values eg dignity Protection Equitable Formal Constitutional Substantive Beneficial

Further standards of interpretation? • Company law - trustee? – Fiduciary duties? – Good faith? • Administrative law?

Nation’s responsibilities Government Responsibilities Use Manage Control Act? Use

Balance out these responsibilities? Actively involve local communities in decisionmaking process Gov Nation • Duties + Standards

Conclusions? • Trusteeship: rely on the legislation and Constitution • Other considerations: • develop idea of community involvement