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

History of legislation of water in SA Roman 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 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 Union Irrigation and Conservation Water Act 1912 Water Act 1956 Public water v private water Riparian land - owner Constitution Section 24: Protection of environment Inter- generational equity Sustainable development Section 27: Right of access to sufficient water Reasonable legislative and other measures; available resources; progressively realised National Water Act 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

RES PUBLICAEPUBLIC TRUST DOCTRINE TRUSTEESHIP DEFINITIONState management Public use State is trustee Public is beneficiary State is trustee Public interest PROBLEMS Antiquated Irrelevant Inconsistent Applied differently from State to State Uncertain Uncertain: how do we interpret these duties in section 3? CONCLUSIONNot necessary Assumption that it is incorporated into our legislation is potentially wrong Best route: can be interpreted and developed on a case- by-case basis. Can develop in terms of Constitution and modern requirements

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

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

Standard: satisfying elements of sustainability

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

ConsiderationsCriteriaStandardDuty ProtectionSustainableEconomicEnvironmentSocial Community involvement Improvement of quality of life Uphold values eg dignity EquitableFormalSubstantiveConstitutionalBeneficial

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

Nation’s responsibilities Government Responsibilities UseControlManageUseAct?

Balance out these responsibilities? Gov Nation Actively involve local communities in decision- making process Duties + Standards

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