(COMMENTARY):  Water Resources Bill 2020 contravenes existing laws, by Adedamola Adejokun

In 2017, the National Water Resource Bill was sent to the National Assembly with a request that it be passed into law.

The bill which sought to transfer the control of water resources from states to the Federal Government created a lot of controversy among Nigerians, and was dumped by the eight Senate.

In 2020 however, the same Bill without modification or alteration has been reintroduced into the House of Representatives by Honorable Abubakar Fulata and is set to be passed into law within a few months. This reintroduction has generated equal controversy as earlier generated, with many Nigerians believing that the aim of the bill is to favor the North and disfavor the Southern parts of Nigeria.

This article takes a look at the validity of the fears of Nigerians by critically analyzing the National Water Resources Bill 2020 vis-à-vis existing legislation and Court decisions.

Highlights of the Bill

The National Water Resources bill is 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’s use and conservation of Nigeria’s what surface waters and groundwater resources and other related matters.

The bill is divided into 13 parts.

Section 1 provides that the objectives of that the bill is to ensure that the nation’s water resources are protected used developed conserved managed and controlled in such a way as to benefit citizens of the country.

Section 2 (1) vests this control of all surface and groundwater affecting more than one state in the Federal Government

Section 2 (2) provides that states may make provisions for the management use and control of water resources occurring solely within the boundaries of the state, but shall be guided by the policy and principles of the Federal Government in relation to Integrated Water Resources Management and the National Water Resources Bill.

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

Section 15 establishes an independent regulatory body to be known as the National Water Resources Regulatory Commission to be charged with the responsibility for the regulation of Water Resources in Nigeria.

Section 25 (4) provides that the commissioner who contribute in subsection 1 2 or 3 of the section commits an offence on the label on convictions with fine not exceeding 50 thousand naira, or imprisonment for a period not exceeding three months or to both such fine and imprisonment.

The bill establishes licensing for persons who desire to use water captured under it that sees diversion pump in construction of damn irrigation among others.

Section 75 provides that no borehole driller, whether corporate or individual shall commence borehole drilling business in Nigeria unless such driller has been issued a Water Well Drillers License by the Commission.

Section 156 repeals the following laws: Water Resources Act; River Basin Development Authority Act; Nigeria Hydrological Services Agency (Establishment) Act; National Water Resources Institute Act.

Issues and controversies

It is imperative that Section 2 (2) and Section 13 be read together to give a clearer understanding of the provisions. Read together, they provide that the minister of Water Resources, and the Federal Government by extension, has the power to formulate policies, which must be strictly followed by the states in administering water resources solely within the boundaries of their states. Hence, states policies must reflect those of the Federal Government.

It must be noted that the Federal Government cannot make such policies for states to follow as doing so will completely eliminate the need for state governments and would amount to the Federal Government directly or indirectly governing the states by itself with the sovereignty of state lost.

Section 75 which provides that a borehole driller must obtain a license before commencing but who drilling business in Nigeria is in direct violation of the Land Use Act, the Constitution, and existing precedents.

It must be noted that the Federal Government can only license persons who want to sink boreholes within the Federal Capital Territory. This is because Section 1 of the Land Use Act vests land within states in the States Governors, and vests land within the Federal Capital Territory in the Federal Government. Therefore, the Federal Government has control only over the Federal Capital Territory.

Only states governors can license water well drillers within their states, and Federal Government can license water well drillers in the Federal Capital Territory only.

In Attorney General of Lagos State v Attorney General of the Federation 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.

In Attorney-General of Lagos State v Attorney-General of the Federation (2003) 4 WRN 124 the Supreme Court (per Uwaifo JSC) held that:

“In the circumstances, I have to say that Professor Osinbajo is right, in my view, in his submission that urban and regional planning for the Federal Capital Territory, Abuja is within the exclusive legislative function of the National Assembly but only by virtue of Section 299(a) conferring residual power on it and not the controversial Section 20 of the Constitution. Similarly, each State House of Assembly has the exclusive function to make planning laws and regulations for the state under its residual power. It must follow that the National Assembly cannot make a law in the form and to the detail and territorial extent of the present Nigerian Urban and Regional Planning Decree No.88 of 1992. To do so will be in clear breach of the principles of federalism and an incursion into the legislative jurisdiction of the States. But it can make planning laws for the Federal Capital Territory, Abuja only on the basis of its residual powers. Again, the National Assembly cannot enact any law, in contravention of the Constitution, imposing any responsibility on a State and expect obedience to such a law. It is a non-controversial political philosophy of federalism that the federal government does not exercise supervisory authority over the state governments.”

In Lagos State Waterways Authority & Ors. v. The Incorporated Association of Tourist Boat Operators & Water Transportation in Nigeria (unreported CA/886/14) where the Court of Appeal held that 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.

In giving its decision, the Court of Appeal stated that:

“The more obvious area of coverage under the exclusive list are the sea tidal waters and maritime ports declared by the National Assembly to be Federal Ports. But one finds nothing in the Exclusive List dealing with intra-state water ways either in Lagos or any other State in the Federation. The burden is on the Respondents to show that any of the Lagoons, creeks or water ways used for intra-state navigation has run across the parameters of Lagos State into international or interstate boundaries and is so declared in a law promulgated by the National Assembly. Item 64 is couched in no narrower scope as it deals with water from such sources declared by the National Assembly to be sources affecting more than one State. The inland waterways within Lagos State are not and cannot by any stretch of interpretation be covered by any item on the Exclusive Legislative list under Part 1 to the Second Schedule of the Constitution and I so hold…”

The court stated that the Lagos State House of Assembly is competent to make laws in respect of the intra-inland waterways in Lagos State except the inter-State waterway declared as International or Interstate Waterway under item 5 in the 2nd Schedule to the National Inland Waterways Act.

In Elegushi v Attorney-General of the Federation (2000) JELR 57863 the

Constitutional validity of the Lands (Title Vesting etc.) Decree No. 52 of 1993 vesting the ownership, control and management of all lands within 100 meters limit of the 1967 shoreline of Nigeria and any other land reclaimed from any Lagoon, Sea, Ocean in the Federal Military Government of Nigeria, was challenged successfully, with the learned trial judge striking down the decree on grounds of inconsistency with the rights of the indigenous land owners in Lagos State.

Conclusion

From the clear and unambiguous provisions of the bill, it is indisputable that sponsors have not averted their minds to the relevant existing legislation and cases that have been decided by the courts on Land Use Act, Inland waterways, physical planning, and acquisition of coastal landed properties by the Federal Government.

It is important then that the drafters and sponsors of the Bill withdraw it and make the necessary amendments to the Bill by studying existing legislation and decided cases in order to clear controversies and to prevent the avoidable confusion that passing the Bill into law will occasion.

Adedamola Adejokun, Barrister and Solicitor, Supreme Court of Nigeria, wrote this piece from Abuja

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