Beneficial use of water is a matter of (public) trust

Water may be regarded as the quintessential public trust resource, an element that underpins the life-critical systems of nature’s, and hence humankind’s, very existence. There can also be no doubt that freshwater resources are ubiquitously in a precarious and worsening state. Thus, any “use” of water must be of such a nature that neither it, nor the ecosystems in which water is sustained, are diminished. 

The South African National Water Act of 1998 (NWA) is a uniquely transformative, democratising and communitarian instrument. It removed ownership of water rights in order to provide access to water for all citizens. This intention was popularly-embodied in the catch-phrase “some [water] for all [citizens], forever”. 

The Act was also crafted to remove impediments to the environmental protection of water resources. In this regard the Act’s contemporary public trust role is to establish an accommodation between a particular land or water use, and any impact that such use may have on the functional integrity and condition of an associated water resource. To this end, the core of the Act lies in section 3 — the public trusteeship clauses. These contain the empowering provision that the state “must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner”. Furthermore, the “allocation of water must be equitable and used beneficially in the public interest”. There is, however, considerably more to the public trust than the few words of the Act’s section 3.

 The essence of the public trust principles are further implicit in section 27 of the Act, where 27(1)(b) speaks to the “need to redress the results of past racial and gender discrimination” while 27(1)(c) requires “efficient and beneficial use [of water] in the public interest.” Both sections 3 and 27 constitute empowering provisions and must be heeded.

In broad terms a public trust approach provides both present and future trust beneficiaries with the assurance that any use of water will be ecologically sustainable. Furthermore, should it be determined that a particular use will harm or diminish the trust capital, that the use may be amended or withdrawn in order to protect the resource.

An equivalent trust analogy is that of a fruit tree. Users may be awarded a time-limited right to pick and sell fruit from the tree (usufructuary right), but they may not do anything that will harm the tree (the trust capital) or decrease its potential to continue producing fruit (sustainability and intergenerational equity). Additional users may subsequently be deemed to have an equitable right to some of the fruit, and this may limit the amount of existing allocations. Removing branches or felling the tree for any purpose that is not in the greater public interest would be forbidden. Should the tree become unhealthy and can no longer sustain the use, then these prior rights may be amended or revoked to allow it to recover. 

All water uses must, therefore, be considered in the context of the public trusteeship of South Africa’s water resources, and subject to the principles that underpin it. These principles delineate the legal guardrails of the fiduciary obligation conferred on the state to protect and preserve the nation’s water resources. This duty is dynamic, responsive and malleable to evolving circumstances, and provides a reparative framework accommodating contemporary equity needs.

The state is the trustee of the public trust in water resources. In this role it must administer the trust solely and impartially in the interests of the beneficiaries, and not be influenced by motives that are antithetical thereto. The minister of water and sanitation is the executive agent of this national trust in water resources. The beneficiaries are three-fold: all of the people of South Africa; the water resources themselves; and the water use licence holder, the latter entitled only to a qualified and revocable usufructuary use of a particular water resource. 

Within a public trust framework, a “beneficial water use” must thus be interpreted far wider than what may be simply regarded as beneficial to the licensee. Often, however, the latter narrow view is the dominant perspective in a water use application. More correctly, when viewed within a public trust framework, a water use must be beneficial to all beneficiaries, as listed above, to build generational wealth. Water uses must also be evaluated through the wide-angle lens of ecological and social benefit. In this regard, the trust may be seen as a perpetual charitable trust — an intra- and inter-generational (sustainability) arrangement supporting a vast number of beneficiaries.

The public trust was intended to be the very backbone of the Act and, to quote the late minister of water affairs, Kader Asmal: “… developing the government’s role as public trustee of water is not an overnight achievement, nor can it ever be said … to be a finished accomplishment. Rather, government must wake every day determined to ensure that the public trust is maintained; … the trust is the legal concept through which a system of water law commits itself to evolve with changes in the water economy and the evolving needs of society.”  

Regrettably this seminal foundation of the Act remains effectively moribund.

Recently there has been debate regarding a proposed amendment to the South African Water Use Licence regulations. This proffers to address racial inequity in water use licence allocations based on the shares allocated to black ownership (as defined in Act 53 of 2003, the Broad-Based Black Economic Empowerment Act) of the entity that is applying for the licence. 

Equitable access to water is unquestionably of paramount importance. The exigencies of the water economy and the evolving needs of society speak directly to the need to empower previously disadvantaged people to gain access to water. Additionally, that they share in the benefits arising from existing authorised uses. In actuality, the provisions to ensure this are already wholly established and embedded in the National Water Act. The beneficiary-directed process does not hinge on the race of the licensee. Thus, the de novo crafting of blunt, quota-based stipulations is unnecessary.

Rather, eliciting an equitable outcome depends on policy-directed thoroughness and sensitivity and, especially, the consideration of environmental values afforded to each individual licence application. Any application for a water use licence needs to stand on its own merits whereby, while providing a pecuniary benefit to the licence holder, it is demonstrably in the public interest and manifestly respects the need to protect the resource itself. The process is by no means immutable and is often circumstantially nuanced and invokes the public trust accommodation principle.

The trustee may not convey public resources exclusively to a private entity, or indeed issue a licence the sole purpose of which is to benefit a private interest, or where it may result in avoidable harm to the resource. The public trust principles thus obligate the trustee to act accountably and transparently, at all times, to ensure the preservation and conservation of the resource. The latter must be achieved in an equitable, ethical and fair manner, throughout drawing on wide-ranging public participation and aligned with a long-term future view.

While the water and sanitation department cites section 3 of the Act in the proposed amendment, it is not clear that the deeper meaning and intentions of the public trust have been realised. Reading beyond the face value of section 3’s  mere 100 words, we find equity-creating, future-view trust provisions anchored in the need to provide an assurance of water quality, as well as in the conservation of the ecosystems through which water passes. As such, there should be no need for race-based water use licence quotas. The trusteeship consideration of a licence application should primarily have regard for the demographics of the entire beneficiary group and not simply that of the applicants. 

Instead, the hitherto dormant role of the public trust should be elevated and operationalised to its originally-intended status. To do so will entrench good governance, bolster public confidence and underpin the present and future collective welfare of society. South Africans who may never hear of any particular water use, must be comfortable in the knowledge that compliance with the public trust will serve to future-proof the nation’s water resources over the long term.

Dr Bill Harding is a consultant ecologist with PhDs in aquatic science and public law. He specialises in water and public trust law. He has recently written on the genealogy of the public trust, its principles and its intended role in South African water law, inter alia by interviewing the drafters of the 1998 National Water Act.