Division 4 of Part VII of the Environment Act 2000 deals with finding out about water resources — both by the State and by private applicants.
Section 88 — official investigations
(a) to enter on land to exercise the rights vested in the State to the use, flow and control of water, to carry out investigations into water resources, and to take measures:
— for conserving water, regulating the flow, and preventing contamination;
— for protecting the bed and banks of a watercourse, lake or shore, and removing obstructions; or
— for removing or destroying unauthorised works affecting the use, flow or control of water; and
(b) to enter on land within a protected area and carry out specified works relating to the use, flow and control of water.
The authorisation may extend to the person’s assistants, employees, agents, servants or contractors, with or without vehicles and machinery. Obstructing or hindering them is an offence carrying a fine up to K25,000.00 or one year’s imprisonment, or both (s 88(2)).
Under section 86, no one may exercise a power conferred by Part VII in relation to land that a person owns or is entitled to occupy without not less than 14 days’ written notice. For customary land, notice to the landowners and the Local-level Government body in the area is sufficient compliance.
Section 85(1)(a) also declares the conducting of official investigations under section 88 to be a public purpose for section 53 of the Constitution and the Land Act 1996 — so land may be acquired for it, with compensation.
Section 89 — applying for a water investigation permit
(1) An application may be made to the Director in the form specified in the Operational Procedures and accompanied by the prescribed fee.
(2) Subject to this Act, the Director may grant a water investigation permit.
(3) It may be granted for a period not exceeding one year, and may be extended.
(4) It is subject to such conditions as are prescribed and as are endorsed on the permit.
Section 90 — the rights conferred
(a) the right to carry out investigations into the water resources in the area — except as against a person authorised in writing by the Director to investigate on behalf of the State;
(b) the right to make surveys, take levels, carry out pumping tests, test-drill and collect soil or geological samples;
(c) the right to install, inspect, operate and maintain gauges, instruments and appliances; and
(d) the right to do such other things as are reasonably necessary for, or incidental to, the investigation.
The permit does not confer the right to authorise the doing of any act prejudicing any customary rights to the customary use of water.
That is a direct statutory protection, and it sits alongside section 79(2), which provides that the Act does not affect customary rights to the use of water by citizens resident in the area where those rights are exercised, and section 5(b), which makes the maintenance of sources of clean water a matter of national importance.
So a permit holder cannot use the permit as authority to interfere with a customary water source. Where investigation works nonetheless cause loss, section 87 provides compensation — expressly including deprivation of rights to water customarily associated with the land.
Note also the exception in paragraph (a): the right to investigate is exclusive against everyone except a person authorised by the Director to investigate on the State’s behalf.
Sections 91 to 93 — assignment, surrender and cancellation
| Section | Rule |
|---|---|
| 91 | A permit shall not be assigned without the written consent of the Director |
| 92 | The holder may at any time surrender the permit by written notice to the Director |
| 93(a) | Liable to cancellation where conditions of the permit are not complied with |
| 93(b) | Liable to cancellation where provisions of the Act applying to the permit or the holder are not complied with |
A decision to cancel is a decision of the Director under the Act in relation to an activity carried on by the holder, so it attracts review by the Environment Council under section 68 within 21 days.
Section 94 — the report, and confidentiality
(1) The holder may at any time, and shall in any case within six months after expiry or revocation, furnish the Director with a report of the investigations, giving details of the hydrological, geographical, geological and geophysical information collected.
(2) The report may form part of the data compiled by the Director under section 77 and shall be used only for purposes related to the conservation of water resources and administration of this Act.
(3) Where the information forms part of that data, the Director shall where possible arrange it so as to prevent particulars from being identifiable as relating to a specific undertaking.
A private investigator of water resources gets a permit and defined rights; the country gets the data. Subsections (2) and (3) are the protections in return: the data may be used only for conservation and administration purposes, and it must be de-identified where possible.
Section 77 is the Director’s general data collection power. Compare section 55(5), which requires confidential trade, business and financial information to be excluded before an impact statement is released for public review.
Practical points
- Check whether the work needs a permit at all — the exclusive right in section 90(a) is what a permit buys; incidental sampling may not require one.
- Apply in the form set by the Operational Procedures, with the prescribed fee.
- Diary the one-year term, and apply for an extension before it ends.
- Give the section 86 notice — at least 14 days in writing, and for customary land to the landowners and the Local-level Government body.
- Do not touch customary water use — the permit confers no authority to prejudice it.
- Record baseline conditions before drilling or pumping, in case a compensation claim follows.
- Obtain written consent before any assignment.
- File the report within six months of expiry or revocation.
If people arrive to drill, pump-test or install gauges, ask to see the instrument or permit, and ask when the 14 days’ written notice was given and to whom. If the work will affect a customary water source, say so in writing at once — section 90 gives no authority to prejudice customary use, and section 87 provides for compensation.
Sources
- Environment Act 2000 — ss 5, 55, 68, 77, 79, 85–94; Part VII Division 4
- Land Act 1996
- Constitution — s 53
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.