Is National Water Resources Bill 2020 legally practicable?

Tochukwu Onyiuke

During the reigns of the 8th National Assembly, an intended legislation tagged; “A Bill For An Act To Establish A Regulatory Framework for the Water Resources Sector in Nigeria, Provide for the Equitable and Sustainable Development, Management, Use and Conservation of Nigeria’s Surface and Ground Water Resources and for Related Matters” surfaced in the green chambers in 2018. Frowned upon, the proposed legislation did not see the light of the day and now the said bill has been repackaged and re-tilted “The National Water Resources Bill 2020”; almost in the final stage of being passed into law by the House of Representatives, “The National Water Resources Bill 2020” has ruffled some feathers across the board as it seeks, at this time of a wide clamour for restructuring, to accede so much power to the centre.

Understandably, this bill has garnered so much outrage in that it appears to further undermine the clamour for devolution of power amongst the top tiers of government, coming particularly at a time when many states are broke and very much dependent on the Federal Government for allocations. Riverine states depend on waterways to generate revenue internally, and so the Federal Government imposing exclusivity of dominance and control on waterways will further impoverish these riverine states as many have so vehemently opined.

Critically looking at this “The National Water Resources Bill 2020” vis a vis the outrage from people, there needs to be a detailed analysis of the bill married with the provisions of the relevant laws of the land to determine its legality or otherwise.

Section 2 (1) of the bill says: “All surface water and groundwater wherever it occurs, is a resource common to all people, the use of which is subject to statutory control. There shall be no private ownership of water but the right to use water in accordance with the provisions of this Act.” While, Section 13 of the bill, states, “in implementing the principles under subsection (2) of this section, the institutions established under this Act shall promote integrated water resources management and the coordinated management of land and water resources, surface water and groundwater resources, river basins and adjacent marine and coastal environment and upstream and downstream interests.”

The interpretation of Section 13 of the Bill empowers the Minister of Water Resources to formulate national policy and water resources management strategy to guide the integrated planning, management, development, use and conservation of the nation’s water resources and provide guidance for the formulation of hydrological area resources strategies under Section 94 of this bill.

Can the purports of this proposed legislation be said to be ultra vires? Part I of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria as amended confers legislative powers on the Federal Government vide the Exclusive Legislative List to preside over the matter/items as listed therein. Particularly item 64 wherein it states unequivocally that: “Water from such sources as may be declared by the National Assembly to be sources affecting more than one state.”

The wordings of item 64 surely serve as a fulcrum to the National Assembly for the passage of this bill, with further backing from items 67 and 68 of the aforementioned second schedule, which posit as follows:

“67 Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.

“68. Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”

From the aforesaid, it could be inferred that indeed the Federal Government is conferred upon with the powers to legislate over waterways as contemplated in the proposed bill. However, the grouse of the various potentially affected people remains that at a time when the clamour for true federalism and devolution of powers to the states and local authorities is heightened, the introduction of a Water Resources Bill further dampens the hopes of Nigerians towards any glimmer of the actualisation of true federalism.

Section 75 of the bill states that no corporate organisation or individual shall commence borehole drilling business in Nigeria unless such driller has been issued a Water Well Driller’s Licence by the commission. The commission shall also regulate the allocation, supply and distribution of water resources for all uses, and promote equitable, sustainable and efficient best practices and conduct in line with Section 2.

In the case of Attorney-General of Lagos State v. Attorney-General of the Federation (2003) 4 WRN 124, where the power of the Federal Government to grant licences for dredging and other related purposes in Lagos State was successfully challenged, the Supreme Court held that the power over physical planning in any state of the federation is exclusively vested in the state government and that the National Assembly lacks the power to legislate on the physical planning outside the Federal Capital Territory.

It is the position of this writer that the bill seems to be contrary to the jurisprudential basis upon which the Land Use Act was promulgated and that is: giving the state governors absolute power over land within their states. So, therefore, this position as entrenched in the Land Use Act cannot be taken away via the National Water Resource Bill or through any other bill. This is emphatically saying that the bill is dead on arrival in so far as it seeks to take over water resources on landed properties without amending Section 315(5) (d) of the 1999 Constitution of the Federal Republic of Nigeria as amended as prescribed by Section 9 thereof.

The section of the proposed Bill which states that “There shall be no private ownership of water but the right to use water in accordance with the provisions of this Act” undoubtedly contravenes the provisions of Sections 1 & 2 Land Use Act giving the governor absolute control over land. If the governor of a state has been vested with the total authority to hold all of a particular state’s land in trust for the people comprising of water under the land, the provisions of the proposed bill which seeks to accede the powers to the minister to issue licenses for boreholes therefore as it stands negates the Land Use Act. The components of the proposed bill will therefore be at a crossroads with the provisions of the constitution in Section 315 (5) (d) of the 1999 Constitution of the Federal Republic of Nigeria as amended from where the Land Use Act derives its recognition and legitimacy from.

By vesting in the Federal Government the power “to protect, use, develop, conserve, manage and control water resources in a sustainable and equitable manner for the benefit of all persons,” as intended by the bill, states are stripped of the power to utilise water resources for their own benefit. It gives untrammelled control of the most basic natural resource of the federating states and just like in the control of mineral deposits, denies owners of resources authority over their environment. In Lagos State Waterways Authority & Ors. v. The Incorporated Association of Tourist Boat Operators & Water Transportation in Nigeria (unreported CA/886/14), the Court of Appeal held that the inland waterways within Lagos State are not and cannot by any stretch of interpretation be covered by any item in the Exclusive Legislative List under Part 1 to the Second Schedule of the constitution.

A voyage into the realms of International Water Law, and how waterways are regulated will be necessary at this juncture to put things into better perspective. The Water Encyclopaedia says, “Under the United States’ federal system of government, no single governmental level has absolute sovereign authority over water. States have considerable authority to establish and implement water laws, policies, and programmes suited to their priority water concerns. State authority is especially paramount in allocating water rights.”

The US Federal Government has sovereignty over interstate or international bodies of water used for commerce; state or local governments govern intrastate water quantity and quality issues. “Between these extremes, each level of government vigorously guards its authority as the balance of power fluctuates to meet changing water priorities.”

 In India, the management of water resources is constitutionally a state subject save for international waters and disputes between states. Amendments in 1993 further granted local governments responsibility for local water infrastructure. Malaysia’s constitution clearly assigns water as a state matter “and this includes rivers, lakes, streams and groundwater.” The law however grants certain powers over hydropower power generation, ports and mining to the Federal Government. It can be nothing less in a federal polity.

Finally, it is also the position of the writer that the bill no doubt contradicts the clear positions of the Land Use Act and it ought not to be passed without amendment to Section 1 & 2 of the Lands Use Act and 315 (5) (d)of the 1999 Constitution of the Federal Republic of Nigeria as amended.