Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)

CHAPTER 11

WATER AND FISHERIES

I. WATER AND FISHERIES RELATED STATUTORY LAW AND POLICY IN NAMIBIA

Shirley Bethune and Oliver C. Ruppel

Namibia is the driest country in sub-Saharan Africa. Less than 5% of the country is arable due to the low and erratic rainfall and scarce ground and surface water.1 Fresh water scarcity thus remains a major environmental challenge in Namibia. Although NDP3’s target of providing 95% of the population with sustainable access to safe water has been reached2, sound water management ensuring social, economic and environmental benefits remains high on the agenda. Scarce water resources have to be shared between the growing population, an increasing number of livestock and crops, and an expanding industrial sector. Water supply is a major challenge in Namibia, especially in the rural areas. The water supply infrastructure has to be maintained, facilities have to be managed, and fees are to be collected in order to organise the water supply.3 In this sense, appropriate policy, legislation and regulation are of great significance.

1 The Policy Framework

1.1 The Water Supply and Sanitation Policy

The Water Supply and Sanitation Policy (WASSP) of 2008 is the main policy regarding water use and conservation in Namibia. This policy replaces the National Water Policy of 1992. Its principles are in line with the Integrated Water Resources Management plan, including a strong focus on water demand management.4 Generally, it aims at ensuring equitable access to water resources sufficient to maintain life, health and productive activities of citizens.

Under this policy the Government is the custodian of all water resources and has the right to control all water use and disposal. Integrated supply and demand planning is required in both the short and long term. Further, the Policy promotes sustainable water utilisation through suitable pricing, promotion of water-efficient technology, public information and awareness programmes, information sharing and co-operation between parties, the promotion of wastewater re-use and active support of research and data gathering on water conservation. There is also provision made for subsidies to those who cannot afford to pay the full costs of water, however, not all communities who cannot pay receive subsidies.5

1.2 The National Water Policy White Paper

In 2002 Cabinet approved the National Water Policy White Paper6 that formed the basis for the Water Resources Management Act7. The policy provides a framework for equitable, efficient and sustainable water resources management and water services and stresses sectoral co-ordination, integrated planning and management and resource management aimed at coping with ecological and associated environmental risks. It clearly states that water is an essential resource to life and that an adequate supply of safe drinking water is a basic human need. The policy makes it clear that water concerns extend beyond human needs for health and survival, also recognising that water is essential to maintain natural ecosystems and that in a country as dry as Namibia, all social and economic activity depends on healthy aquatic ecosystems.

The National Water Policy includes a basic principle headed “Ecosystem values and sustainability” which stresses that the management of water resources needs to harmonise human and environmental requirements, recognising the role of water in supporting the ecosystem. One of the strategies provided to ensure environmental and economic sustainability is to ensure that in-stream flows are adequate both in terms of quality and quantity to sustain the ecosystem.

The National Water Policy was developed to guide water resources management in Namibia. It is based on the country’s physical and climatic setting, particularly its aridity, the legacy of the pre-independence era and current trends in development, specifically relating to Namibia’s water resources management. This policy clearly states that water concerns extend beyond human needs for health and survival, that water is essential to maintain natural ecosystems and that in a country as dry as Namibia, all social and economic activity depends on healthy aquatic ecosystems. The policy further recognises the need for inter-sectoral coordination between all stakeholders involved in using and managing water resources. Salient principles contained in the policy include:

The Policy recognises the need to promote equitable and beneficial use of international watercourses based on generally accepted principles and practices of international law. This realisation originated from the 1974 Water Master Plan that identified the need for Namibia to negotiate for access to shared perennial rivers to complement the internal water sources.

The policy proposes to protect water resources from pollution by enforcing the ‘polluter pays principle’ and regular water quality monitoring on all proposed projects. Furthermore, it proposes to improve knowledge on the vulnerability of critical wetland ecosystems and to develop strategies for their effective management. Two clauses within Sections 2.3 on Water Use and Conservation Principles and 2.5 on Legislative and Regulatory Principles are particularly relevant to shared water resources:

Precautionary environmental protection: The resource base shall be protected against any kind of contamination or pollution that would render ay part of it unfit for beneficial human, economic and environmental purposes….applying the precautionary principle.

Factoring environmental considerations in decision making: The need to protect the environment in general, and the aquatic ecosystems in particular, including their biodiversity and the nation’s wetlands will be factored into the allocation of water resources for use and will include the prior assessment of the environmental impacts of proposed water uses.

The totality of the principles found in Namibia's policy framework for water resources management satisfies the criteria for sustainable use of shared watercourse systems and principles found in international law instruments that Namibia is party to and provides sound guidelines for future legislation and regulations.

1.3 Namibia’s Draft Wetland Policy

Namibia’s Wetland Policy vision is to manage national and shared wetlands wisely by protecting their vital ecological functions, life support systems for the current and future benefit of people’s welfare, livelihoods and socio-economic development. The objectives of the policy are to:

The basic principles used in Namibia’s National Water Policy, which are intended to provide a framework for the development of all water-related policies, have been adapted for the Wetlands Policy in order to complement existing national policy instruments relevant to sustainable development and sound natural resource management and to help meet the national commitments as a signatory to the SADC (Southern African Development Community) Protocol on Shared Watercourse Systems, NEPAD (New Partnership for Africa’s Development), several regional water commissions on shared river courses, the Ramsar Convention, the UNCBD (United Nations Convention on Biological Diversity), the UNCCD (United Nations Convention to Combat Desertification) and the UNFCCC (United Nations Framework Convention on Climate Change). It was prepared in consultation with all relevant ministries.

Recognising that wetlands often span two or more political regions within a single country or two or more sovereign states and that this can lead to conflicts of interest, duplication and possible habitat loss, a basin-wide approach to wetland management is advocated and to conserve shared wetlands, the establishment of trans-frontier protected areas is specifically stated.

Legislative and regulatory principles include the development of legislation to protect Namibia’s diverse and vulnerable wetlands. Further to this, the need to protect the biodiversity and ecological functioning of wetlands will be factored into all new laws and policies as well as setting aside water for aquatic ecosystems (water for environmental flows). The right to consultation between all relevant stakeholders, including basin communities affected by development decisions occurring at the local, basin and international level shall be respected.

The Draft Wetlands Policy still lacks approval. However, at the occasion of the official launch of Namibia’s fifth site listed under the Ramsar Convention, the Bwabwata-Okavango Ramsar site which covers the lower Okavango River8 in February 2014, the Minister of Environment and Tourism announced that the Ministry will start to finalise the Draft National Policy on Wetlands in the next two years to provide the policy framework and guidance to the management of wetlands. It is furthermore envisaged by the ministry to establish a National Committee on Wetlands as provided for under the Ramsar Convention to spearhead the national wetland programme of the Government.9

1.4 Namibia’s Marine Resources Policy

Namibia’s 2004 Marine Resources Policy: Towards Responsible Development and Management of the Marine Resources Sector states that Namibia is committed to observe the principle of optimum sustainable yield in the exploitation of marine resources, in line with the Constitution. The overall objective of the policy is to:

… utilise the country’s fisheries resources on a sustainable basis and to develop responsible industries based on them in a way that ensures their lasting contribution to the country’s economy and overall development objectives, as detailed in Vision 2030 and National Development Plans.

This objective is to be attained by means of the following main strategies:

The policy’s fundamental principles include, inter alia, Namibia’s commitment to responsible fisheries and to conduct the planning, management and development of the marine fisheries sector in accordance with international best practice. Furthermore, the precautionary approach to fisheries management is recognised and it is stated that such approach shall be applied as appropriate.

1.5 Namibia’s Aquaculture Policy

The 2003 Aquaculture Policy deals with the responsible and sustainable development of farming with aquatic plants, fish, molluscs and crustaceans and advocates responsible aquaculture developments. This policy deals directly with the potential impacts of alien and other invasive species and seeks to minimise the impacts on aquatic ecosystems. Impacts specifically mentioned include the release of introduced species and genetically modified organisms, the mixing of farmed and wild stock (genetic pollution) and the risk of disease transfer.

One of the principles on which the policy is based is to ensure the protection of the living resources of national and international waters, both marine and freshwater, from possible adverse effects resulting from aquaculture activities, introductions and effluents. The strategies to address the stated objective of responsible and sustainable aquaculture development include maintaining genetic diversity and the integrity of aquatic ecosystems and ensuring responsible aquaculture production. The policy is firmly rooted in the internationally accepted ICES (International Council for the Exploration of the Seas) Code of Conduct on Responsible Fisheries, the Food and Agriculture Organisation (FAO) Technical Guidelines for Aquaculture Development as well as the Holmenkollen Guidelines and recognises international responsibilities in terms of CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora), Ramsar and other agreements governing shared water resources. The policy recognises the need for specific aquaculture laws and regulations and lays the foundations for these. It thus provides a framework for the subsequent development of the Aquaculture Act to establish both the duties of the state and the responsibilities and the rights of aquaculturalists, and to identify the responsible authorities in terms of enforcement and clear procedures for conflict resolution.

The policy lays the foundations for a National Development Master Plan for Aquaculture and promotes support for communal aquaculture. It recognises the importance of environmental assessments under the authority of the Ministry of Environment and Tourism, particularly in designating aquaculture zones. It specifically states that the Government may take measures such as the establishment of hatcheries, to reduce reliance on wild-caught juvenile indigenous fish and repeated introductions of exotics in order to protect genetic resources.10

The policy explicitly deals with maintaining genetic diversity and the integrity of aquatic ecosystems and stresses a precautionary approach.11 Any proposals for further introductions or translocations of freshwater aquatic organisms, particularly the introduction of exotics and potential transfer of disease organisms will be carefully examined and guided by a strict code of practice. Provision is made for lists of allowable and prohibited species to be compiled and regularly reviewed and if required to establish watershed zonation beyond which indigenous or exotic organic organisms may not be translocated. Preservation of genetic diversity will be promoted and care will be taken to limit adverse impacts on internationally shared waters. Responsible aquaculture production practices are outlined, firmly placing the responsibility with the aquaculturalists for safe and efficient farm management. It touches on quality, health and ethical concerns.12

2 The Statutory Framework

2.1 The Water Act No. 54 of 1956

This rather out-dated legislation remains in force until the new Water Resources Management Act comes into force upon signing by the Minister. Although two new Water Resources Management Acts have been approved by Parliament, the first in 2004 followed by the approval of the recent Water Resources Management Act in 2013, neither of them has been signed into law. The 2004 Act has in fact never been signed into law and has been repealed as a whole by the 2013 Act, which is yet to be signed by the Minister to become operational. Thus, the 1956 Act remains applicable for the time being.13

The main purpose for passing the Water Act, as its preamble states, was to consolidate and amend the laws relating to the control, conservation and use of water for domestic, agricultural, urban and industrial purposes. The Act also aims to make provision for the control of the use of sea water for certain purposes, for the control of certain activities on or in water in certain areas and for the control of activities which may alter the natural occurrence of certain types of atmospheric precipitation. It must be noted that this Act does not apply to Namibia in its entirety since certain sections were suspended or never applied to Namibia.14 This reveals that this Act cannot cover all the areas of Namibian water law. For this reason, Government drafted the Water Supply and Sanitation Policy (WASSP) which will be considered in brief below.

The Act distinguishes between private and public water. Private water is that which flows, naturally rises, falls or generally drains or is directed into land but is not available for common use.15 Public water includes any water flowing or found in or derived from the bed of a public stream, whether visible or not.16 There is no private property right to public water,17 and the sole and exclusive use and enjoyment of private water is vested in the owner of the land on which such water is found. 18 The Act thus gives preferential abstraction rights to the landowners on whose land such water is found.19

The private-public water dichotomy might be unconstitutional in the current constitutional dispensation because whereas the Act provides for private and public water, the Constitution regards natural resources as common resources thus they constitutionally belong to the state unless otherwise lawfully owned. Considering that all water is controlled by the state under the public trust doctrine emanating from Article 100 read together with schedule 5 of the Constitution all the water can be regarded as a common resource – hence public.20 The Act, however, has some balancing provisions whereby the Minister of Agriculture, Water and Forestry (MAWF) has the power to control the amount of water to be used by a person who has private water rights.21 Connected to this in terms of Section 21, the Minister has the power to order a person to purify water he has contaminated. A person can, however, apply for an exemption from this duty and the Minister has to use his/her powers to consider whether to grant the application or not.22

Section 23 prohibits pollution of public or private water, including underground water, or sea-water. Sections 27 to 55 deal with control and use of subterranean water. The President is empowered to declare certain waters to be a subterranean water control area, if the Minister is of the opinion that it is in the public interest to do so.23 Once proclaimed, Cabinet has extensive powers to determine how that water is going to be extracted and all concomitant matters.24

This Act gives the Minister the power to investigate water resources, plan water supply infrastructure, develop water schemes, control pollution, protect, allocate and conserve water resources, inspect water works, levy water tariffs and advise on all matters related to the water environment in general. It makes the Department of Water Affairs, in MAWF, responsible for the use, allocation, control, and conservation of Namibia’s surface and groundwater resources.

2.2 The Water Resources Management Act No. 24 of 2004

This Act has been approved and published in the Government Gazette;25 however, it has never come into force. Instead, it has been amended to take into account certain practical aspects of its implementation and was in the following repealed as a whole by the Water Resources Management Act No. 11 of 2013. For the purpose of comparison, some major aspects of the 2004 Act will be sketched in the following.

The 2004 Act was based on the National Water Policy and provided for the management, development, protection, conservation, and use of water resources. The Act introduced equitable access to water resources for all population groups in Namibia. It provided an integrated, enabling legislative framework within which Namibian water resources could be managed, and water services be provided. The objective of the Act was to ensure that Namibia’s water resources are managed, developed, protected, conserved and used in ways, which are consistent with or conducive to certain fundamental principles set out in section 3 of the Act. The management of water resources was required to be consistent with and promote:

The Act provided for basic human and environmental water needs, although not as specifically as stated in the National Water Policy.

Part V of the Act,26 provided for the establishment of Water Point User Associations27 at community level, consisting of those rural community members who permanently use a water point. Their function was defined as to operate and maintain the water point in question and to make decisions about water use regulations. The Act provided for a Water Point Committee to monitor and enforce compliance with such regulations and for the establishment of a Water Resources Management Agency as well as Basin Management Committees to manage water resources sustainably.

Part IV of the Act paved the way for establishing basin management committees in order to promote the management of water resources on hydrological boundaries taking into account physical, climatic, ecological and human factors affecting the quantity and quality of water resources. By 2011, eight basin management committees had been established.28

The Act specifically dealt with the control of alien invasive species in Section 133 on regulations, stating that the Minister may declare any species to be alien invasive species and may make regulations for their eradication or control. Further, as the Act requires water resources management to operate according to the principles of environmental sustainability, this implies that where aquatic invasive species threaten water resources and wetland habitats they will be dealt with.

Another fundamental principle upon which the Water Resources Management Act was based is that Namibia meets its international obligations and promotes respect for its rights with regard to internationally shared water resources, resource quality and, in particular, to the abstraction of water for beneficial use and the discharge of polluting effluents. Part 10, on Internationally Shared Water Resources, recognised Namibia’s obligations under international treaties, conventions, such as the UNCBD, and agreements and specifically mentions the Law of Non-Navigational Uses of International Watercourses and the revised SADC Protocol on Shared Water Resources. Regarding shared water courses, the Minister was authorised to participate in the development of a common database, joint projects and conflict resolution and to establish institutional links and ensure stakeholder participation with neighbouring riparian states. The Act includes the obligation to collect and share data and information on internationally shared water resources and lists these in Section 55.

According to the fundamental principle of integrated planning and management of surface and underground water resources, an Integrated Water Resources Management Plan for Namibia has been formulated by a consortium lead by Windhoek Consulting Engineers (WCE), in close cooperation with the Ministry of Agriculture, Water and Forestry (MAWF) and the Namibian National Water Partnership (NWP). The plan has not yet been approved.29

2.3 The Water Resources Management Act No. 11 of 2013

Although the new Water Resources Management Act No. 11 of 2013 has been passed by Parliament, signed by the President and published in terms of the Namibian Constitution,30 it has not yet come into operation as the Minister has not yet determined a date for the Act to come into operation as required by Section 134 of the Act. Regulations to implement the Act are currently under preparation. Once in operation, the Act repeals both, the Water Resources Management Act No. 24 of 2004 (which had de facto never come into force) and the Water Act No. 54 of 1956 as a whole.

The Water Resources Management of 2013 was enacted to provide for the management, protection, development, use and conservation of water resources; for the regulation and monitoring of water services and for incidental matters. The aims of this new Act include to ensure that Namibia’s water resources are managed, developed, used, conserved and protected in a manner consistent with, or conducive to, specific fundamental principles as set out in Section 3 of the Act, namely:

  1. equitable access for all people to safe drinking water is an essential basic human right to support a healthy productive life;
  2. access by all people to a sufficient quantity of safe water within a reasonable distance from their place of abode to maintain life and productive activities;
  3. harmonisation of human water needs with the water requirements of environmental ecosystems and the species that depend on them, while recognizing that the water resource quality for those ecosystems must be maintained;
  4. promotion of the sustainable development of water resources based on an integrated water resources management plan which incorporates social, technical, economic, and environmental issues;
  5. availability of open and transparent information about water resources to the public;
  6. recognition of the economic value of water in the allocation of water;
  7. development of the most cost effective solutions, including conservation measures, to infrastructure for the provision of water;
  8. supporting integrated water resources management through human resources development and capacity building;
  9. promotion of water awareness and the participation of persons having interest in the decision-making process should form an integral part of any water resource development initiative;
  10. consistency of water resource management decisions within the specific mandate from the Government regarding the separation of policy, regulatory and operational functions;
  11. prevention of water pollution and implementation of the principle that a person disposing of effluent or waste has a duty of care to prevent pollution;
  12. a polluter is liable to pay all costs to clean up any intentional or accidental spill of pollutants;
  13. cognisance of Namibia’s international rights and obligations in the utilisation of internationally shared water resources and the disposal of waste or effluent; and
  14. cognisance of the regional diversity in water resources development and the decentralisation of responsibilities to the lowest level of Government where adequate and appropriate competency exists to manage water resources effectively.

In these fundamental principles, many general principles of environmental law are echoed, such as the principles of prevention, precaution and the polluter pays principle. The Act in terms of Section 4 of the Act imposes on the state an obligation to ensure that water resources are managed and used to the benefit of all people in furtherance of the aims of the Act.

Part two of the Act assigns a variety of powers and functions to the Minister with regard to the management of water resources including among many others the powers to conduct water resources management planning and to ensure an adequate supply of water for domestic use. The Minister is furthermore responsible for international negotiations related to internationally shared water resources and water related matters. Certain powers can be delegated to the Water Regulator, a basin management committee or to the permanent secretary or any other staff member of the ministry. Furthermore, the Minister can make regulations relating to various issues pertaining to the management of water resources and specified in Section 129.

The Act provides for the establishment of a Water Advisory Council in part three to advise the Minister on issues such as water policy development and review; water resources management; and water abstraction and use. The Water Advisory Council is established upon nomination and “consists of 11 members who are persons with extensive knowledge and experience in water resource management and from authorities or institutions responsible for or involved in water supply or water management.”31

Furthermore, a Water Regulator consisting of five members is to be established under the Act, to determine the tariffs of fees and charges that may be levied by a water services provider or that are payable by licence holders for the abstraction of water or the discharge of effluent or the supply or re-use of effluent. The Water Regulator also performs other functions with regard to water service providers, which have to be licenced according to the provisions in part ten of the Act.

Basin Management Committees are further institutions that may be established under part five of the Act to further the Government’s objective in achieving an integrated management of water resources. The Basin Management Committees have several functions, including the promotion of community participation and “to advise the Minister on matters concerning the protection, development, conservation, management and control of water resources and water resource quality in its water management area.”32

Internationally shared water resources are considered in part six of the Act, which describes in more detail the functions of the Minister related to internationally shared water resources. Specific agreements are listed in relation to which regulations can be made by the Minister to give effect to these agreements. These are in general agreements relating to internationally shared water resources binding on Namibia and announced by the Minister by notice in the Gazette. In particular, the agreements establishing the Orange-Senqu River Commission (Orasecom); the Permanent Okavango River Basin Water Commission (Okacom); the Zambesi Watercourse Commission (Zamcom); and the Kunene Permanent Joint Technical Commission are listed as such international agreements.

One further part of the Act is designated to the management of rural water supply with the option to establish Water point committees and local water committees to be “entrusted with the responsibility of managing and controlling the supply of water at any rural state waterwork.”33

For the development, conservation, management and control of Namibia’s water resources, the Minister must in cooperation with regional councils, basin management committees and water services providers prepare an Integrated Water Resources Management Plan to be submitted to Cabinet for approval and which is subject to review after ten years following Cabinet’s approval.

Water supply, abstraction and use of water are regulated in part 9 of the Act which foresees a close cooperation between the Minister responsible for water affairs on the one hand and the Minister of health on the other.

As a general rule, a non-transferable licence is required for the abstraction and the use of water.34 This requirement does, however, not apply to the abstraction of water for domestic use and to owners of a private well for the abstraction of domestic use.35 The licence, which is subject to a fee, may be obtained by application to the Minister and can be combined with a licence to discharge effluent as required according to Section 70.

The control and protection of groundwater is addressed in part twelve of the Act, which contains specific provisions as regards to the construction of boreholes and wells and respective licenses. Part thirteen of the Act deals with water pollution control and lays down the precautionary principle. A licence is required to discharge effluent or construct or operate wastewater treatment facility or waste disposal sites.

On the initiative by the Minister or upon application by other persons having an interest, Water Protection Areas can be declared under the provisions of part fourteen of the Act “in order to protect and enhance any water resource, riverine habitat, watershed, ecosystem or other environmental resource that is at risk of significant changes to resource quality, depletion, contamination, extinction or disturbance from any source, including aquatic or terrestrial weeds.”36 The overall effect of declaring an area a water protection area is that there is a duty to comply with any limitation or prohibition imposed and specified in the notice of declaration of the water protection area.

Certain emergency powers for the Minister are stipulated in part fifteen of the Act to limit the right to abstract and use water for example in situations of water shortages or to control pollution.

Further provisions of the Act deal with water services plans and efficient water management practices; dams, dam safety and flood management; the control of activities affecting wetlands, water resources and resource quality (including the control of aquatic invasive species); water services provided by state; and servitudes which may be claimed by licence holders to give effect to that licence.

Offences are addressed by Section 127 of the Act and cover a number of acts related to abstraction or use of water not in conformity with the licence or the pollution of water resources. What is remarkable from a legal point of view is the establishment of an appeal body to be known as the Water Tribunal to hear and decide appeals against decisions by the Minister in matters specified in detail in Section 120, including for example in cases where the issuance of a licence has been refused. The Water Tribunal will consist of a chairperson appointed by the Minister with the concurrence of the Judge President of the High Court and up to 6 other persons selected and appointed by the Minister.37

2.4 The Namibia Water Corporation Act No. 12 of 1997

The Namibia Water Corporation Act establishes the water utility company, NamWater, and places an obligation on NamWater to conduct its functions in an environmentally sustainable and sound manner, and specifies a duty to conserve and protect the environment. It should conduct all activities with due regard for the protection and conservation of ecological resources and habitats. Water is allocated through a permit regulatory system and NamWater is entitled to apply for a permit to impound surface runoff in ephemeral rivers, and to abstract water from perennial rivers as well as groundwater. The Act will be amended by the Water Resources Management Act No. 11 of 2013.

2.5 The Marine Resources Act No. 27 of 2000

The Marine Resources Act provides for the conservation of the marine ecosystem and the responsible utilisation, conservation, protection and promotion of marine resources on a sustainable basis. For that purpose it provides for the exercise of control over marine resources and for matters connected therewith. The provisions of the Act do only apply to coastal waters.

The Marine Resources Act replaces the Sea Fisheries Act38, which in turn replaced the Sea Fisheries Act39. It furthermore replaces the Sea Birds and Seals Protection Act40, and the Fishing Boat and Factory Owners’ Committee Ordinance41. However, according to Section 64(2) of the Marine Resources Act, regulations made under previous legislation remain in force. Many such regulations have been drafted, for example on the northern limit of Namibian waters; the licensing of foreign-flag vessels for the purpose of harvesting Namibia’s marine resources; or the declaration on the Namibian Islands Marine Reserve. In 2001, regulations relating to the exploitation of marine resources42 were made under Section 61(1) of the Marine Resources Act. These regulations set forth procedures for granting rights or exploratory rights, allocating quotas and issuing licences; permits for fishing for recreational purposes; and for conservation measures such as the control of fishing gear used for harvesting for commercial purposes. Furthermore, the regulations contain provisions on the protection of the marine environment.43 In 2015, the Act has been subject to several amendments, in terms of the Marine Resources Amendment Act44, which provides for the sovereign exercise of ownership by the state over marine resources and amends the provisions relating to the total allowable catch and allocation of quotas.

2.6 The Aquaculture Act No. 18 of 2002

The Aquaculture Act regulates and controls aquaculture activities and the sustainable development of aquaculture resources. It allows the Minister to formulate a policy based on social, economic and environmental factors, the best scientific information and advice from th advisory council to inter alia promote sustainable aquaculture and manage, protect and conserve aquatic ecosystems. All aquaculture ventures are subject to strict licensing. 45 Important clauses are Sections 27 (1) and (3), dealing specifically with the introduction and transfer of aquatic organisms:

A person may not, without written permission granted by the Minister, introduce or cause to be introduced into Namibia or any Namibian waters any species of aquatic organism or any genetically modified aquatic organism or transfer any species of aquatic organism from one aquaculture facility to another or from any location in Namibia to another. The Minister must not issue any approval under this Section unless the impact of any introduction or transfer of any aquatic species or genetically modified aquatic organism has been assessed, if so required, in accordance with the legislation or policy dealing with environmental assessments.

The import or export of aquatic organisms is subject to written permission from the Minister according to Section 28(1).

2.7 The Inland Fisheries Resources Act No. 1 of 2003

The Inland Fisheries Resources Act deals with the conservation and utilisation of inland fisheries resources and allows for the updating and development of new policies for the conservation and sustainable utilisation of Namibia’s inland fisheries. It encourages cooperation with neighbouring countries regarding the management and conservation of shared waterways. No fishing is allowed in parks nor by net within 100m from a bridge, culvert or spillway or in a manner which obstructs more than half the width of any watercourse. Furthermore, it prohibits the use of destructive fishing methods such as the use of poisons, explosives and night lights and the introduction and/or transfer of non-indigenous fish species. Fines or imprisonment are prescribed for destructive fishing and the use of nets where they are banned. Of importance in terms of shared water resources is that it prohibits the introduction, transfer, import and export of any species of fish or crustacean without written permission (Section 19(a) and (b)) and that anyone convicted of this may be fined or imprisoned. The Act makes provision for the establishment of an Inland Fisheries Council and although no environmental officer is specified to serve on this, it makes provision for the appointment of honorary inspectors from the environmental affairs ministry. Section 23(2a) sets out the powers of fishery inspectors. The Act makes it compulsory to have a fishing licence to fish in any inland water body using any regulated fishing gear, specified as a rod, line, hook and/or nets and requires the registration of nets. The Act allows for the protection of endangered fish species as well as the declaration of fisheries reserve areas where no one may fish, pollute the water, dredge the area nor disturb the natural environment of fish and related ecosystems. The Act allows the Minister to make regulations necessary to manage inland fishery resources that range from methods allowed and gear limitations, through allowable fish sizes to types of surveys to be conducted and what data should be collected.

2.8 Prevention and Combating of Pollution at Sea by Oil Act No. 6 of 1981

This Act prohibits the discharge of oil from ship, tanker or any other offshore installation and gives the state certain powers to prevent such pollution and to deal with the removal of oil spills. While inland pollution is covered by the Water Act, the Prevention and Combating of Pollution at Sea by Oil Act is applicable to coastal waters.

 


1 World Bank (2009c:vii).

2 GRN (2012b:54).

3 On water management problems, especially in the Kavango Region, see Falk (2008) and the following sub-chapter.

4 GRN (2008).

5 Schachtschneider (2001).

6 White Paper on National Water Policy for Namibia (2000).

7 No. 4 of 2004 repealed as a whole by Act No. 11 of 2013.

8 The other four wetlands already listed under the Ramsar Convention are the Orange River Mouth, the Walvis Bay Lagoon, Sandwich Harbour and the Etosha Pan.

9 Nakale (2014); see also MET (2015).

10 Cf. Section 3.1.11(d) of the policy.

11 Cf. Section 4 of the policy.

12 Cf. Section 5 of the policy.

13 The Water Act No. 54 of 1956, was for example still applied by the High Court in Windhoek in the case concerning the use of groundwater by the Valencia Uranium Mine; see Menges (2008).

14 Only the following provisions of the Act have been made applicable to Namibia: Sections 1-4, with effect from 25 June 1969 – according to Section 180(2) of the Act; Section 162, with effect from 1 April 1971, by Proclamation 281 of 1970 in terms of South African Government Gazette 2921 of 13 November 1970); Sections 5 to 7, 9A, 21 to 23, 26 (excluding paragraph (a)), 27, 28(1), 30, 34 to 43, 44(2), 45 to 51, 54 to 56, 57(1), 59(2), 66, 69, 70 (excluding paragraphs (d), (f.) , (g) and (h)), 139 to 152, 164 bis, 164 ter, 165, 166, 170 (excluding sub-Section (3) and paragraph (c) of sub-Section (5)) and 171 – with effect from 26 June 1971 by Proclamation 151 of 1971 in terms of South African Government Gazette 3167 of 25 June 1971; and Sections 9B; 30A (a) and 170(3) with effect from 18 December 1985 by Act No. 22 of 1985.

15 Section 1.

16 Section 1.

17 Section 6.

18 Section 5.

19 Land-based entitlement: Rights to abstract and use public and private water is based on the riparian principle which means that the right to water usage is determined by the location of the water resources in relation to the land.

20 See similar arguments advanced in GRN (2000b).

21 Section 9A.

22 Section 21(5).

23 Section 28(1) as substituted by sec 5 of Act No. 42 of 1975. Only this sub-Section is applicable in Namibia. The other sub-Sections including Section 29 are not applicable to Namibia.

24 See the powers in Section 30.

25 GG 3357/2004.

26 Sections 16-22 of the Act.

27 For more details on water point associations, see Falk (2008) and the following sub-chapter.

28 GRN (2012:29).

29 Ibid.

30 See Government Gazette No. 5367 (2013) Government Notice No. 332.

31 Section 8.

32 Section 23.

33 Section 30.

34 Section 44.

35 Sections 38 and 39.

36 Section 85.

37 See Ruppel (2008d) for the role of the executive in safeguarding the independence of the judiciary.

38 No. 29 of 1992.

39 No. 58 of 1973.

40 No. 46 of 1973.

41 No. 16 of 1968.

42 GN 241/2001 (GG 2657); In a recent report on Seal Harvesting in Namibia (cf. Office of the Ombudsman 2012), the Ombudsman of Namibia has recommended to amend regulations 18 and 20 to bring section 18 (1) of the regulations in line with section 32(1) of the Marine Resources Act and to ensure the humane killing of seals. For further details see also Chapter 19 of this Volume.

43 For an overview of sea fishing laws and regulations see International Business Publications (2015).

44 No. 9 of 2015.

45 Regulations related to licensing are contained in GN 246/2003 (GG 3104).