Very little has been achieved during the first five decades of development and application of what is now known as environmental law, in terms of slowing the global rate of biodiversity loss and ecosystem degradation. A major factor in this lack of effectiveness has been, perhaps, too narrow a focus on individual elements that exist within ecosystems, rather than on the health of the ecosystems themselves. Additionally, very little attention has been paid to maintenance of the integrity of the many types of connections that exist between the different components of ecosystems, notably aquatic ecosystems. These components are connected not only by water, but also by a variety of ecological connections and pathways ¾ here termed 'hydroecological connectivity' (HEC). These connections are not only important in terms of providing abiotic and biota corridors between components, but they also act as conduits which can translocate pollutants from one location, over vast distances, throughout a fluvial ecosystem, consequently impacting virtually all areas of human life and nature. This thesis outlines the science underpinning the first connectivity-based water law regulation, the American Clean Water Rule (CWR) and analyzes a set of legal challenges to this Rule. Barring one instance, no substantive merit was found for any of the disputed claims. Furthermore, this thesis identifies the transferability of the Rule to South Africa. It was possible to empirically substantiate the merit of the single instance that lacked appropriate qualification in the CWR. The importance of HEC is elucidated in this work using the example of headwater streams which, in aggregate, comprise 79 per cent of the aggregate length of the mapped rivers in South Africa. Also provisionally evaluated is a brightline distance, lateral to fluvial watercourses, within which water resource components that are likely to be connected to the mainstem will be found. This provides a guideline for HEC-directed administrative decision making. A connectivity-based approach to water resource governance will require limitations on some land uses on portions of land that is likely to be perceived as terrestrial but which, in fact, forms part of an aquatic ecosystem. This requirement raises obvious implications for property ownership and expropriation. Here the principles of the public trust, already legislatively expressed in South African water law, provide an institutional legal framework that renders 'public' any lands which form part and parcel of the integrity an aquatic ecosystem. The public trust doctrine anchored the reform of the post-apartheid water law of South Africa. It was introduced in a transformative and emancipatory approach to the democratisation of the nation's water resources and the restoration of water equity. This work provides the first historico-legal and comprehensive perspective of the genealogy and intentions for, the public trust in South Africa, and distils out the principles which the trust embodies. An example protocol is developed which shows how the trust principles underpin the formulation of guidance for determinations of beneficial water uses. Recommendations are made regarding the operationalization of the currently moribund South African public trust in water and highlights the role of the public trust as an effective and reformatory tool of water law. In summary this work is a translational and transdisciplinary example of aquatic science into environmental law. The complex and challenging concept of HEC is communicated in plain language and then its perceived weak point ¾ the need to isolate areas of land which form part of the aquatic resource and incorporate these within the trust res ¾ is construed using the principles of the public trust doctrine. Simultaneously the potential of the public trust to offset obstacles to environmental protection, such as the need for reformed guidance for administrative decision making, has been highlighted. On this model the public trust enfolds an ecosystem-directed HEC approach into a transformative and normative governance package which is integrative, adaptive, multi-disciplinary and proactive.

No description available.

The people of the Tsilhqot’in Nation have, and continue to, govern their lands according to dechen ts'edilhtan, the laws of their ancestors. Through their history, their control over their lands and waters have faced opposition from outside forces which include neighbouring nations and settler governments into the colonial present. Over time, their laws have remained strong and deeply internalized, and yet have been exercised to maintain their contested control up to the present. One profound moment when Tsilhqot’in laws became apparent to outsiders was when laws relating to access to the nen (Tsilhqot’in land) effectively proved the Tsilhqot’in Nation’s claim of Aboriginal title over a portion of their territory at Canadian law in 2014. This dissertation provides a deep analysis of dechen ts'edilhtan as it applies specifically to use of and access to surface water in the Tsilhqot’in nen. The purpose is two-fold. First, to continue the ongoing work of understanding and articulating Tsilhqot’in law. Second, to facilitate the identification of possible methods through which ancestral laws may engage Canadian legal and political systems for the benefit of Tsilhqot’in people, and indeed, all Canadians. / Graduate / 2023-01-17

First Nations in Canada face numerous challenges when it comes to water. First Nations experiences with water range from individual and family challenges, including limited or no access to safe drinking water, to broader collective concerns such as exercising aboriginal or treaty rights to hunt, fish or gather. Many changes are in play, centered on the element of water: the implementation of a new federal act regarding drinking water on First Nations reserves; numerous amendments to various federal and provincial environmental laws and regulations; and a recent set of ground-breaking court decisions on First Nations identity, aboriginal title, historic treaties and water. A sense of urgency comes from these developments. Over the last number of decades, First Nations have been negotiating complex and unwieldy relationships (or the absence of relationship) with federal, provincial/territorial and municipal governments regarding water — for spiritual/ceremonial use, domestic use, waste disposal, and economic development; and as a function of treaty and aboriginal rights and title. Over this time, the laws and standards used to frame such relationship(s) have been “mainstream” or Canadian. This thesis proposes that in combination with powerful Indigenous legal traditions, the new constitutional and legislative paradigm signifies a transformative and re-formative shift with regard to First Nations and water. / Graduate

Saudi Arabia is the largest country in the Arabian Peninsula and about 65% of the landscape is comprised of deserts. The country is located in arid regions where renewable water resources are limited and the annual rainfall is less than 150 mm in most of the country except for the south western region. The country is rich in petroleum resources, and petrochemicals, and oil exports account for much of the nation's prosperity. Saudi Arabia is a country that enjoys several economic booms, with urban expansion continuing years in the future. The country witnessed comprehensive developments accompanied by rapid population growth during the last three decades after the increase in oil profits in 1975. This has resulted in a large increase of domestic, industrial and agricultural demands. The agricultural demands are satisfied by groundwater pumping from local aquifers. The country relies on costly sea water desalination plants in producing about 50% of its domestic water supplies because the groundwater quality is not suitable for domestic purposes in most of the country. Saudi Arabia has, for several years now, been experiencing domestic water shortage problems in some major cities especially in the summer season. As things stand, the water industry in Saudi Arabia remains under the government's control and until the last year, there are no clear rules and regulations to open the door for private companies to come in and operate the water sector with the aim of providing a better quality of water service. This picture has changed during the last two years after the establishment of the Ministry of Water and Electricity (MOWE). The Ministry has shown strong indication for involving the private sector in water and sanitation services. This thesis, therefore, represents an attempt to provide comparative and analytical studies on the question of whether privatisation of the water industry could provide a better water system to the Kingdom of Saudi Arabia (KSA), and whether such a system would be better able to satisfy the water requirement in terms of quality and quantity. Some other countries have already gone through privatization process, and have found better solutions for water supply, which surmount different cultural, geographical and even legal environments. England is one of such country which has successfully privatized its water services. This thesis will therefore attempt to examine the existing regime for water regulations in Saudi Arabia and compare it to the English system. We will then analyze whether there are lessons for KSA to learn from the English system of water privatization. This will involve a critical review on the backgrounds of Saudi Arabia and England in respect of the legal and economical basis for privatization. The research consists of seven chapters. In Chapter One, I will introduce my research topic, providing the general background of that topic and addressing the issues I hope to raise in my research. I will also seek to justify my research topic and introduce the research methodologies that underpin my research. Chapter Two is concerned with the economic background of the Kingdom of Saudi Arabia. This chapter sets out the importance of inter-relationship between the national economy and the water situation in the country. Chapter Three will then turn to an assessment of Islamic perspective on water matters as well as looking at how that law is interpreted in KSA. This chapter thus sets out the general framework of Islamic Law and the way in which it addresses the issues of water ownership in Saudi Arabia. Chapter Four gives an analysis of the successful English model of privatization in water industry. The chapter starts with a summary of the historical evolution of the issues of privatization in the water sector, and then looks at the evolution of the regulatory regime in England. This chapter also mentions the main issues for a private water industry and focuses specifically on the role of the regulator in this sector. Chapter Five will compare and contrast the Saudi Arabia system with the English model, with particular relation to matters of regulation, the regulator, contracts and ownership in the water services. Following this chapter. Chapter Six offers policy model and recommendations to the Government of the Kingdom of Saudi Arabia based on the experience of the English model, with the hope of finding a course of action for privatization of the Saudi water sector in an attempt to tackle the ongoing challenges faced by the water services in the Kingdom of Saudi Arabia. The Saudi recommended model can be followed by other arid countries especially the Muslim States. The concluding Chapter Seven will then summarize the results and findings of my research.

Thesis (LL.M. (Environmental law and Management)) --University of Limpopo, 2007. / The purpose of this thesis was to critically examine the enforcement of environmental regulations with special reference to the enforcement of offences in the National Water Act 36 of 1998. “Enforcement” was conceptualized as “power” the exercise of which is constrained by the constitutionally guaranteed rights, especially the rights contained in Chapter 2 of the Constitution of the Republic of South Africa Act 108 of 1996 – the Bill of Rights. “Compliance” was conceptualized as a rational action. The polluter is both a rational economic actor as well as a rational political actor. “Enforcement” and “Compliance” were further considered as economic activities with costs and benefits. The “responsive enforcement and compliance” model was also adopted in this thesis. Environmental regulation is contentious because of the failure to adequately distinguish environmental crimes (mala prohibita) from common law crimes (mala in se) and the erroneous believe in the immutability of law especially pro-defendant procedural rights in criminal prosecution. This failure to distinguish environmental crimes from common law crimes resulted in the requirement of the proof of mens rea in criminal prosecution for breach of environmental law. Arguments were advanced to show that mens rea can easily be proved in environmental law areas of land use and development and resource conservation while it is a Herculean task for the prosecutor to prove mens rea in waste disposal and pollution offences. Arguments were also advanced, in terms of s. 24 of the 1996 Constitution and s. 2 of the National Environmental Management Act 107 of 1998, to show that “sustainable development” and the principles derived therefrom, especially the “precautionary principle” and the “polluter–pays principle”, are part of the corpus of South African constitutional and statutory laws. The “precautionary principle” and the “polluter-pays principle” have assumed the status of customary international law, and consequently part of South African laws in terms of s. 232 of 1996 Constitution. The provisions of s. 24(b) of 1996 Constitution prescribed both positive and negative duties for the state in respect of environmental regulation and prescribed the ambit of environmental regulation in South Africa. The “precautionary principle” is interpreted as deliberation guiding in form and a legal rule in content. The “precautionary principle” as a rule guides the actions of organs of state and other environmental stakeholders. The “polluter-pays principles” is interpreted as a legal rule which should be applied in the “all-or-nothing” sense. Arguments were advanced for the application of the “polluter-pays principles” in criminal prosecution. The legal effect of the application of “polluter-pays principle” in criminal prosecution for environmental crimes is to negative mens rea and transform environmental crimes to strict liability offences. In the environmental law areas of land use and development and resource conservation where mens rea is easily provable, the application of the “polluter-pays principle” would limit the prosecutor’s duty to proving, beyond reasonable doubt, the acts that constitute the offence against the accused. Thereafter, it is opened to the accused to prove, on scale of probabilities, that he lacks the mens rea (dolus or culpa) necessary for conviction. In the area of waste disposal and pollution control where proof of mens rea is difficult, the application of the “polluter-pays principle” should result in the application of the rule in Rylands Fletcher. All the prosecutor need do to obtain conviction is to prove, beyond reasonable doubt, the acts that constitute the offence against the accused. The Reconstruction and Development Programme (RDP) is identified and recognized as the dominant social paradigm (DSP) in South Africa. It is within the context of this DSP that environmental regulation is situated. Examining the penal provisions in the National Water Act 36 of 1998 against the background of the DSP, one is not left in doubt why the water pollution and degradation offences in the Act are fault-based. The DSP also partly accounts for the subordination of criminal law to administrative and civil judicial procedures in the enforcement of offences in the NWA 36 of 1998. Offences in the NWA 36 of 1998 were classified into 5 groups– failure crimes, reporting crimes, fraud crimes, obstruction crimes and environmental injury crimes. The failure crimes, reporting crimes, fraud crimes and obstruction crimes are common law crimes (mala in se) in the environmental law context, they are therefore subject to criminal prosecution like any other common law crime. Most of the environmental injury crimes are subject to administrative and civil judicial penalties, that is, the criminal sanction is subordinated to administrative and civil enforcement. The water pollution and degradation offences in s. 151 (1)(i)(j) of NWA 36 of 1998 are fault-based. In a water stressed country, this is a subsidy to industry for job creation and poverty eradication as dictated by the DSP– the RDP. However, in the prosecution for water pollution and degradation offenses, the application of the “polluter-pays principle” would negative mens rea. The legal effect is that in any prosecution for water pollution or degradation, to secure conviction, the prosecutor is only expected to prove the acts constituting the offence beyond reasonable doubt. It is thereafter open to the accused to the prove, on scale of probabilities, that he lacked either the dolus or culpa required to ground conviction. Since different cast of players are responsible for environmental protection and criminal prosecution (the National Prosecution Authority), coordination amongst the environmental agency, the prosecuting authority and the police is recommended. This can be achieved, inter alia, through joint participation in national enforcement conferences and joint participation in environmental task forces.

This paper entails a critical analysis of the development of water law in South Africa. It examines the historical development process of the law, discussing the tendencies followed in Roman and Roman Dutch Law systems. The principles of water allocations which had been adopted into the South African law system by the courts and legislature is analysed. A review of the water allocation mechanism of the Water Act 54 of 1956 indicate that the water law thereunder is outdated, no longer reflecting the needs of our society. Especially since it was based on antique systems of water allocation derived from European countries where the climate and hydrology are different to South Africa. With the advent of a new democratic Government, the principles of fairness and equity as embodied in the Constitution, demanded that South African water law be reviewed. This mammoth task was undertaken by the Minister of Water and Forestry Affairs, Professor Kader Asmal. After a two year consultative period process, the National Water Act 36 of 1998 was enacted. The provisions of this Act indicate a radical departure from the previous system of water allocation. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1999.

No description available.

Conjunctive management of surface and ground -water resources on state and local levels is a relatively new political phenomenon. This type of management has evolved, in part, in response to growing populations with ever -increasing, and often conflicting, water demands. In addition, a more sophisticated technical understanding of the physical link between groundwater and surface waters has led water managers to reconsider historical strategies for solving water supply problems. In light of growing demand and improved technology, some western states have begun the transition from crisis- oriented water management to one of long -term planning for population growth and environmental protection. This planning process requires that the constituents of a region define their water use goals and objectives so that various approaches to conjunctive management may be evaluated for their suitability to that particular physical and socio- political environment.

The term "governance" encompasses both governmental and nongovernmental participation in collective choice and action. Law dictates the structure, boundaries, rules, and processes within which governmental action takes place, and in doing so becomes one of the focal points for analysis of barriers to adaptation as the effects of climate change are felt. Adaptive governance must therefore contemplate a level of flexibility and evolution in governmental action beyond that currently found in the heavily administrative governments of many democracies. Nevertheless, over time, law itself has proven highly adaptive in western systems of government, evolving to address and even facilitate the emergence of new social norms (such as the rights of women and minorities) or to provide remedies for emerging problems (such as pollution). Thus, there is no question that law can adapt, evolve, and be reformed to make room for adaptive governance. In doing this, not only may barriers be removed, but law may be adjusted to facilitate adaptive governance and to aid in institutionalizing new and emerging approaches to governance. The key is to do so in a way that also enhances legitimacy, accountability, and justice, or else such reforms will never be adopted by democratic societies, or if adopted, will destabilize those societies. By identifying those aspects of the frameworks for adaptive governance reviewed in the introduction to this special feature relevant to the legal system, we present guidelines for evaluating the role of law in environmental governance to identify the ways in which law can be used, adapted, and reformed to facilitate adaptive governance and to do so in a way that enhances the legitimacy of governmental action.