1
FEDERAL REPUBLIC OF NIGERIA
FEDERAL MINISTRY OF WATER
RESOURCES
IN COLLABORATION WITH THE F.A.O. (UNITED NATIONS)
NATIONAL LEGAL CONSULTANT
REPORT ON:
ESTABLISHMENT OF A MECHANISM FOR TRIPARTITE CONSULTATION IN THE MANAGEMENT OF THE IULLEMEDEN AQUIFER SYSTEM
MARCH 2005
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INTRODUCTION
The North –Western Nigeria sedimentary Basin lies between
longitudes 3 30E and 658E and latitude 1020E and 14N.The
Sedimentary basin covers an area of approximately 60,000km.The
sedimentary basin in Nigeria constitutes only a fraction of the lullemeden
Aquifer system (IAS). The Sokoto River and its tributaries drain the
surface area. Surface and underground sources of water are important in
the basin .The Sokoto River System discharges over 5 x 109 m3 of water
into the River Niger annually. The underground water system, however, is
more complex, for it consists of different aquifers and it is possible to
encounter varying number of them in one vertical section. The Gwandu
Formation alone (the most prolific of the seven aquiferous formations in
the basin) is estimated at 6.8 x 10.10m3 of water. These are yet to be
tapped to any appreciable degree. (Oteze, 1972).
Information and data was obtained from officials of the Federal Ministry of
Water Resources, (FMWR), the National Water Resources Institute,
(NWRI), and geological and hydrological reports by experts, bilateral and
multilateral treaties and national legislations from law libraries and
specialized legal institutions. All information and data that relate to
development in the lullemeden Basin were considered and analyzed with a
view to highlighting areas where Nigeria needs to focus greater attention in
the overall management of the waters of the IAS.
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The relevant treaties are evaluated with a view to investigating their
adequacies or otherwise in achieving collaborative management of water
resources of the IAS.Nigeria’s stated goals and objectives include the
enhancement of regional consensus and collaboration, integrated basin-
wide development strategy for international watercourses and aquifers,
international donor support for technical studies and project
implementation, pollution control and prevention of watercourses aquifer
degradation and effective arbitration and conflict resolution mechanism.
The considered opinion is that there is need for a bilateral treaty between
Nigeria and Mali akin to to that between Nigeria and Niger on the one
hand, and that between Mali and Niger on the other, while simultaneously
emphasizing that whereas existing bilateral and multilateral treaties and
agreements could benefit from some amendments and modifications, the
present shortcomings and inadequacies of regional institutions established
under them were not traced to defective treaties.
From the Nigeria standpoint, the sedimentary formations which contain
aquifers belonging to the IAS are to be found in the North-West Nigeria
Basin and may be listed as follows:
CRETACEOUS-: (1). Illo Formation
(2). Gundumi Formation
(3). Taloka Formation
(4). Wurno Formation
TERTIARY-: (5). Kalambaina Formation
(6). Gwandu Formation
RECENT-: (7). Laterite
(8). Alluvium
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The lullemedem Aquifer system as it affects Nigeria is confined to the
North-Western Nigeria Basin covering Sokoto, Kebbi, Katsina and
Zamfara states. The Basin has enormous resources of both surface water
and ground water. Most of the surface watercourses are subject to very
high seasonal fluctuations so that it is not safe to rely on the direct tapping
of the river water alone for any major water supply project. The tapping of
river water should be supplemented by a system of boreholes in the
sedimentary areas.
The cardinal objective of this study is to collect and analyze the national
legislation and existing arrangements and agreements at the bi-and trilateral
level, as well as the documents of a legal nature of relevance to the
management and development of the water resources of the IAS.This is with a
view to achieving the future collaborative management of water resources of
the IAS.
The national legal consultant therefore deontically considered the study
objectives and analyzed the constraints of states, both at the national,
bilateral and trilateral levels and proposed solutions, which will ensure an
enhanced cooperation among states of the aquifer system (Mali, Niger and
Nigeria). This is done out of the conviction that the principle of good faith
and good neighborly relations should govern the use of all international
waters and their related issues.
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CHAPTER ONE
TRANSBOUNDARY AQUIFERS
1.1 The lullemenden Aquifer System (IAS)
Available information reveals that the IAS covers an area of
approximately 500000km2,of which about 31,000km2 in Mali,
434,000km in Niger, 60,000km2 in Nigeria. The lullemenden is a
multiaquifer system of a complex nature for it consists of different
aquifers composed of inserted cretaceous continental intercalaire
sedimentary formations, which contain aquifers with overlying tertiary
continental terminal regroupings. Recent sedimentary formations, which
contain aquifers with overlying Laterites and Alluvium, are also features
of the IAS.The total exploitable water reserves of the IAS are estimated
at about 20,000km3.Consequently,the IAS is an enormous strategic
reserve of immense sub regional significance equaling 50 years of the
flows in the Niger River. The IAS benefits from an appreciable
contemporary recharge, mainly from seasonal infiltration from river
valley bottoms and from wetlands connected to the aquifer system.
The water quality in the IAS is generally good. To-date, water quality
problems have in general remained local with limited transboundary
impacts. The risk, however, of the water resources of the IAS
becoming over-extracted as a consequence of both on-going and
anticipated mining activities in the IAS region, linked to the
exploitation of oil reserves is ever-present.
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Changing land-use and deforestation in the recharge area of the
aquifer and in the wetlands are a source of major risk with a potential
for transboundary impact. The risk and uncertainty of climate change,
the anticipated increase in the development and extractions from the
aquifer, and the risk of pollution from surface watercourses, all
contribute to the potential for transboundary conflict.
Against the afore-stated background there is a felt need for putting in
place acceptable mechanism for the future collaborative management
of the water resources of the IAS.
1.2. Dynamics of Transboundary Aquifer Management
Given Diverse physical, political and human interactions within trans-
boundary aquifer systems, the management of these shared water
systems may be somewhat difficult. Issues of increasing water scarcity,
degrading water quality, rapid population growth, unilateral water
development, and skewed levels of economic development are
routinely cited as potentially disruptive factors in co-riparian water
relations. These issues are just as pertinent to groundwater, given that
ground that water basins do not conform any better to boundaries or
involve lesser externalities then surface water. As the dependence on
groundwater in many parts of the world grows so does the need for
identifying appropriate institution for managing shared aquifers.
(Hayton, 1982). All said, there is only scant practical experience in joint
management of international –shared aquifers. Groundwater has only
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rarely been mentioned in international treaties (Hammer and Wolf,
1997).
Notwithstanding these difficulties. States of the IAS (Mali, Niger and
Nigeria) have demonstrated a friendly disposition towards cooperation
over their shared water supplies. Elsewhere in the world the
establishment and maintenance of transboundary water institutions has
proved to be a decisive factor in conflict mitigation efforts. The
existence or non-existence of water management institutions affects co-
riparian water relation surpassing well-known variables like ecological
factors, climate, and availability of water, social demography, state of
National economic development and political system. In places where
transboundary riparian institutions exist, the relationship between co-
riparian points towards cordial and co-operative co-existence. This is
not so much the case where no institutions or treaty exist to ensure co-
operative management.
1.3. Institutional Development In Groundwater Management
International law does not provide much assistance in structuring joint
management institutions, as it has traditionally focused on the allocation
of (surface) freshwater, rather than a cooperation mechanisms
(Benvenisiti, 1996). Given the complexity of groundwater management
and the lack of experience in transboundary management of aquifers, an
effort to identify structures specifically suited for the management of
international-shared groundwater resources is, therefore warranted
(Feitelson and Haddead, 1998). Globally, the international community
has developed guiding principles and laws for the management of
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international freshwater. At a finer scale, regional bodies and individual
governments have developed protocols and treaties governing the
management and protection of specific international water bodies.
Together, these developments have fostered greater understanding and
promoted the objective of coordinated management within the worlds
international basins,(UNEP,2002)
1.4. Groundwater Issues
Three main groundwater issues, which must be given adequate attention
in any scheme of proper collaborative management of the IAS, are tied to
excessive pumping, and consist of the following:
Water quality (e.g. salt water
intrusion)
Land subsidence
Surface flow
1.4.1.Groundwater Quality
The properties of an aquifer and the length of time the water is in contact
with the aquifer material have the most influence on quality. For alluvial
deposits, the quality of the water infiltrating (from precipitation and
applied irrigation water) as deep percolation and recharging from streams
into the aquifer is also an important influence on groundwater quality.
Recharge mechanism are different in confined and unconfined aquifers.
Since confining layers reduce the volume and rate of direct recharge, the
effect of recharge on groundwater quality in confined aquifers is less than
in unconfined aquifers (Guy etal, 1994)
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A variety of chemicals can contribute to groundwater contamination, salt,
fertilizers, and pesticides (including insecticides, herbicides and
fungicides) used in agriculture may dissolve in water and leach into
groundwater, other courses of contamination include surface disposal of
liquid waste, septic tanks. Leaking sewers and underground storage
tanks, industrial waste, and oil field brine disposed through injection
well, as well as mining wastes (Everett 1990).
Salt-water intrusion occurs when saline, waters migrate into fresh water.
Excessive groundwater pumping in basins located near saltwater, such
basins along coastline, estuaries, or inland lakes, may be susceptible to
saltwater intrusion if they are not managed carefully. Salty water can be
unfit for potable and even agricultural supplies.
Groundwater pumping can also induce the migration of poor quality
waters from adjacent vertical areas. Interaquifer movement of poor
quality water can occur when there is a difference in the hydraulic head
across aquifer boundaries through well screens, perforated casing, or
open boreholes. Over pumping from freshwater aquifers overlying salty
water may also cause upwelling of connate saline water from under the
base of the freshwater (Everett, 1990).
1.4.2.Land Subsidence
Land subsidence from groundwater pumping is influenced by changes
in water level or piezometric head and the compaction characteristics
and thickness of aquifer deposits (Poland and Evenson 1966). The
dynamics of land subsidence because of groundwater pumping is
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different for different aquifers. The economic consequences may
include the costs of relevelling land, repair or replacement of deep wells
(because of ruptured casings) and unexpected flooding from changed
gradients and the courses of streams and creeks. Subsidence can also
cause serious problems in the construction and maintenance of
highways and water and wastewater conveyance structures (Ireland
1986).
1.4.3 Surface Flows
Groundwater contribution to stream flow is an important hydro
geological fact and may be the sources of recharge of river group within
a basin. Between Sabon Birni and Sokoto, the Rima River loses about
5.07x107m3 of water to the ground every year. This is influent seapage.
Much of this water is lost to the alluvium in the riverbed but part of this
may recharge the Rima Group (Oteze, 1972).
The springs issuing from the Kalambaina limestones generally last
longer into the day season. They are good for tapping locally in small
villages but many small springs may coalesce to support perennial
flows in large rivers, such as the River Kaduna, the dry season flow of
which is derived principally from small seepages from the basement.
Water seepage springs are the principal source of perennial surface
water (Oteze, 1972).
Groundwater use increase during dry periods when surface supplies
become restricted. Sustained pumping of groundwater over an extended
period can “overdraft” a basin –a condition where depletion exceeds
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aquifer safe yield. Overdraft reduces groundwater storage in a basin and
cause water level decline. Excessive water level decline may even cause
land subsidence and affect groundwater quality (Guy etal, 1998).
1.5. Nigeria’s Goals, Objectives and Concerns in IAS Water
Management
Nigerians national objectives, goals and concerns in the proper
management of the waters of the IAS may be summarized as: ensuring
the protection of her interest in this vital resources, while
simultaneously recognizing the right of other co-riparian to enjoy the
benefit of the same resources.
Following the attainment of political independence in 1960,Nigeria
recognized the need to work closely with its neighbours in equitably
sharing these resources through regional cooperation and bilateral
agreements. Being downstream of virtually all-major regional
watercourses, it remained in her interest to ensure the sustainable use of
these transboundary waters whether as surface streams or aquifers. The
following summarize\ her goals in the IAS: -
1.5.1.Enhancing Regional Consensus and Collaboration
The important role of consensus building and mutual collaboration in
the beneficial management of shared water basins is a matter of global
interest and were re-emphasized at the 1992 UNCED Earth Summit in
Rio de Janeiso.
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The Niger Basin Authority (NBA) and the Niger –Nigeria Joint
Commission (NNJC) being primary points of contact, serve as veritable
avenues for mutual dialogue between Nigeria and other states of the
IAS.Whereas the NNJC is a bilateral commission between Niger and
Nigeria, there is no bilateral Agreement between Mali and Nigeria. On
the other hand there is a bilateral agreement between Mali and Niger
relative to cooperation in the utilization of resources in water of the
Niger river entered into on July 12,1988.
Notwithstanding the lack of bilateral agreement between Mali and
Nigeria, so far the NBA treaty and the ECOWAS spirit provide good
ground on which to believe that mutual understanding exist between the
three states of the IAS.Increasing local demands on available water
resources for hydroelectric power generation, integrated agriculture,
urban and rural water supply and other uses allied with expanding
economies may trigger further developments that will increase pressure
of demand on the waters of the lullemeden Basin. In the absence of
consultations and agreements, Nigeria’s interest as a downstream state
with enormous investments on her water resources would be severely
affected.
1.5.2.Integrated Basin-Wide Development Strategy
It is in Nigeria’s long-term interest to ensure viable frameworks for joint
design and management of transboundary watercourses and aquifers in
which she is a joint owner. This position acquires added significance in
respect of the Niger Basin and the lullemeden Aquifer System because
Nigeria is downstream of these systems. Nigeria’s downstream status
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renders her vulnerable in terms of watershed degradation, water pollution
and diverse harmful environmental practices, such as “Overdraft” of
groundwater. Nigeria’s national policies on the use and management of
the IAS and infact all shared watercourses must reckon with similar
policies of other riparian states both in respect of the lullemeden Basin
and the larger. Niger Basin.Transboundary planning, basin-wide data
collection and information sharing generate confidence and attract project
support both from within and outside the region.
1.5.3.Attracting External Support For Project implementation
Mali, Niger and Nigeria are all developing countries at different stages
of development and are differently endowed with human and material
resources. They certainly do not posses all the scientific and
technological know-how that they require for the realization of the
fullest potential of the basin’s groundwater reserves. Against this
background, it stands to reason that they should seek external support
and participation in any scheme of collaborative management of the
IAS.
Experience has shown that international donor support in water
resources management is more readily available to states jointly
seeking to manage their transboundary water resources within a shared
basin.
Sensitive to the efforts made, the international community re-started
and intensified its support to NBA and its member states through:
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The funding of projects/programmes (GEF, ADB, CIDA,
FRANCE, NETHERLAND BANK, BADEA, WORLD
BANK)
The designation on January 2004 of the Niger Basin as pilot
basin for the IWRM component of the European Initiative
“Water for Life”
The Organization, on the joint initiative of president
Mamadou TANDIA, Chairman of the NBA summit of
Heads of state and Government, and the French president
H.E Jacques CHIRAC, of the conference of the NBA Heads
of state and Government on the international Partnership for
the Niger Basin (Paris, April 26-27,2004).
All these actions and initiatives benefited from a favorable
environment at the international level illustrated by the holding of
several important meetings (Johannesburg, September 2002;Kyoto,
March 2002;Evian, June 2003;Addis Ababa, December 2003;Dakar
January 2004,etc). The IAS states may in like manner benefit from
external support given by international donor agencies including also
other bilateral and multilateral agencies.
1.6. Study Objectives
The objectives of the present study as set out in the TOR for the
national legal consultant is inter alia, collect, analyze and assess the
national legislation and the existing arrangements and agreements at the
bi-and trilateral level as well as the documents of a legal nature of
relevance to the management and development of the water resources
of the IAS.Furthermore, meet with officials of the Ministries and
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institutions of the country with a view to obtaining information and data
of use for the future collaborative management of the water resources
of the IAS.The national consultant will participate in the formulation of
proposals on the mandate, nature and form of a tripartite arrangement
for consultation in the management of the water resources of the IAS.
CHAPTER TWO
METHODOLOGY
2.1. Data Collection
The National Legal Consultant collected, analyzed and assessed
multilateral and bilateral Treaties, Agreements and Conventions entered
into by Nigeria for the establishment of regional water related
institutions. This review exercise was undertaken with a view to
determining their application and adequacies. The relevant institutional
frameworks for these organizations were deontically examined for the
purposes of identifying any shortcomings. Nigeria national water law
was also considered.
Kindred conventions such as the 1997 UN Convention on the Law of
Non-Navigational uses of International Watercourses, the UN/ECE
Helsinki Convention on the protection and uses of Transboundary
Watercourses and International Lakes (1992) the Espoo Convention on
Environmental Impact Assessment (1991), and the South African
Development Community (SADC) Protocol (1995) were considered
alongside these national law and multilateral and bilateral treaties to
examine their sufficiency or defect(s), both in drafting and application.
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The national legal consultant also consulted the published works of
Nigerian experts on the hydrology and hydrogeology of the Sokoto
Basin (the Nigeria segment of the shared lullemeden Aquifer) as well as
those of eminent authorities in the area of international shared aquifers
and transboundary waters. The Report of the water Resources
Management Study Group (WRMS) on Nigeria’s transboundary waters
was also studied in detail alongside other relevant literature on the
Niger Basin, obtained from the Niger Basin Authority. The study also
benefited from consulting the United Nation’s Environment Programme
(UNEP) Atlas of international freshwater Agreements. Other literatures
considered relevant to this assignment were also duly consulted.
2.2. Visits
In consonance with the Terms of Reference the national legal consultant met
with officials of Nigeria’s Water Resources Ministries (Federal and Basin
States) and the National Water Resources Institute, Kaduna. Field visit was
made to Basin area and the relevant State water Agencies and the Nigeria
Institute of Advance Legal studies, Lagos.
Other institutions visited include National Meteorological Institute, the
Federal Geological Survey of Nigeria, the National Law Reform
Commission, Lagos; and the Federal Ministry of Justice, Abuja. Visits were
also made to the university libraries at Kongo and Samaru, Zaria.All visits
were undertaken with a view to obtaining information and data of use for the
future collaborative management of the water resources of the IAS.
2.3. Framework For Analysis
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The meteorological, hydrological and hydro geological information
gathered were deontically considered with the view of determining the
quality availability and exploitation of the lullemeden Aquifer water
from the Nigeria Sokoto Basin. The major thrust of the analysis was
to determine the nature and extent of these vital resources and to
establish how the legal and regulatory mechanisms can be invoked for
their conservation, renewal and sustainability.
The adequacy or otherwise of all Treaties, Conventions and Agreements
signed in the attainment of their stated objectives were considered and
evaluated. This process was also extended to Nigeria domestic water related
legislations. The national legal consultant subjected documents of a legal
nature as well as legislations proper to detailed scrutiny in order to establish
compliance and adherence to the letter and spirits of these instruments.
Comparative references to similar regional and international treaties and
conventions were made. These include references to the South African
Development Community (SADC) protocol (1995), the UN convention on
the Law of the NON-Navigational uses of international Water, (1997), the
UN/ECE convention on the protection and use of Tran boundary
Watercourses and international Lakes done at Helsinki, (1992).
Following the above approach, the national legal consultant considered
and recommended mechanism and parameters for evolving and/or
strengthening the international legal instrument for the IAS.At the level
of Nigeria’s water laws, the place of the Water Resources Decree, 101
of 1993 and the role of the River Basin Development Authorities
(RBDAS) in achieving an integrated approach to the water resources of
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the IAS, enforcement of standards, equitable use and sustainability was
reviewed.
CHAPTER THREE
SALIENT FINDINGS
3.1 General Observation
It is stating the obvious truth to say that water sustains life and that any and
every effort made to make it available both in terms of quantity and quality
for the use of the citizenry at the right time and place is a welcome
investment. The wants of a man in regards to the element of water is
therefore natural and absolutely necessary to his existence. In order for the
needs of all users to be met, there exist the need to keep account of what
amount of water is available, when, where, and who should get what. Thus,
there is need for information and data.
Information and data form the basis of sound policy formulation and
decision –making. Information acquisition, analysis, storage and easy
retrieval, as well as sharing are essential to the management of
transboundary waters whether as surface or groundwater. In the absence of
information and relevant data, riparian states become uncooperative,
suspicious and even hostile towards project development affecting shared
water especially as it affects the sovereignty, security and survival of the
state. It is thus a matter of mutual interest for all riparian states to strengthen
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capacities for data collection, data processing, and information
dissemination.
3.2. Water Resources Situation In The lullemeden Basin
3.2.1. Nigerian Segment
The Sokoto Basin represents Nigerians share of the IAS.This basin has
enormous resources of both surface water and groundwater. Most of the
rivers, however, are subject to very high seasonal fluctuation. Records
reveal that the Sokoto River at Wamako for example, had a maximum
wet season flow of 364.1m3/sec and a minimum dry season flow of
0.497m/sec from April 1965 to March 1966.Since the major drought of
the 1970s there has been a general reduction in the available surface
and underground water resources. There has been considerable
reduction in the rainfall with a southward shift of the isoyetal annual
contours by 180km, and this phenomenon has affected the entire
northern borders of Nigeria being also an international basin.
Apart from the three dry-shale formations (the Dukamaje, the Dange and
Gamba formations) all the sedimentary formations in the Sokoto Basin
contain aquifers. In general, the alluvium in the riverbed in a locality should
be investigated along with other sources of groundwater while searching for
water in any area in the basin. The quality of the various waters is good for
most purposes. In conclusion it should be noted that the water resources of
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the basin are still largely potential and have not yet been harnessed and
tapped to any appreciable degree.
3.2.2.The Transboundary Situation
The national legal consultant has no specific mandate to investigate the
aquifer yields in both Mali and Niger republics. From the records,
however, there is yet no instance of conflict between the three states
Mali, Niger and Nigeria on the pumping of the water resources of the
IAS nor has there been complaints of activities in one country affecting
the aquifer in another. However, there is a risk that this may not be so if
major water resources projects continue to be built without proper
consultation or exchange of information between IAS states. Nations
sharing transboundary aquifers may have to make decisions on a wide
range of issues. These include determination of pump age regimes and
rates, drought policies, protection measures, monitoring, enforcement
of restrictions on pump age and land use, recharge enhancement
projects, wastewater treatment standards and reuse policies, and crisis
management measures. In addition, coordination of research and
sharing of data, models and expertise facilitates a more effective and
efficient management regimes.(Feitelson and Haddad 1998).It is
therefore in the interest of IAS states (Mali, Niger and Nigeria) to
strengthen capacities for databases, information gathering and
dissemination.
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3.3 TREATIES, CONVENTIONS AND LEGISLATION
3.3.1 General
Institutions charged with water resources management whether they be
bilateral, multilateral or even national institutions are the result of some
Accord or legislation. An appraisal of such multilateral/bilateral
accords and national legislation as they affect the workings or adequacy
of these institutions to respond to their mandates is herein undertaken.
The management of a transbounedary aquifer is further examined
against the background of these legal instruments.
The multilateral and bilateral accords governing the management of
Nigeria’s transboundary waters in the area bearing on the IAS basin
area are the following: -
1. Revised Agreement Relating The Creation Of Niger
Basin Authority.
2. Agreement Between The Federal Republic Of
Nigeria. And The Republic Of Niger Concerning
The Equitable Sharing In The Development,
Conservation And Use Of Their Common Water
Resources.
3. Water Resources Decree, No 101 1993 (Nigeria’s
national water law).
In the ensuing appraisal of the features of these treaties, a couple of UN
Conventions have provided a reference point both in assessing their
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adequacy and the need for re-negotiation and possible modification in
specified area. These UN Conventions include: -
1. The UN convention on the Law of Non-
Navigational uses of International Watercourses
(1997).
2. The UN/ECE Helsinki Convention On the
Protection and Use of Tran boundary
Watercourses and International Lakes (1992).
3. The Espoo Convention On Environmental
Impact Assessment (1991).
The relevant experience of the South African Development Community
(SADC) was also referred to in the context of the adoption by member
countries of the community of the (SADC) Protocol on shared
Watercourse Systems (2000), a significant regional development in the
management of shared water basins.
3.3.2. Treaties For The Niger Basin Authority (NBA)
The Niger River and its basin has been the subject of various
agreements dating back to the colonial era. However the Revised
convention pertaining to the creation of the Niger Basin Authority
signed at N’djamena on October 29,1987 is the current legal instrument
grouping together states of the Niger Basin, including Mali, Niger and
Nigeria (three states of the IAS). This agreement is a re-codification of
various earlier agreements such as the Niamey Act relating to
navigation and economic cooperation among Niger Basin states
(October, 1963) agreement relating to the Niger River commission and
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navigation and transport on Niger River (Niamey 1964) and the
convention on the creation of the Niger Basin Authority (Farannah,
Guinea 1980).
By virtue of the N’djamena convention signed in 1987 the basin states
decided to transform the Niger River Commission into a Niger Basin
Authority with headquarters in Niamey, Republic of Niger. The Niger
Basin Authority (NBA) replaced Niger River Commission in November
1980.It inherited all the means of the latter. Such a transfer was not
formalized in a legal way; neither did the member countries make an initial
contribution to the establishment of the organization. Thus NBA continued
receiving grants and Agreements from member countries and development
partners. This situation marked an inherent weakness in the organization,
abinitio.
The stated goal of the NBA as enshrined in Article 3,is to promote
cooperation among member countries and ensure an integrated
development in all areas of energy, water agriculture, livestock, fishing and
fish farming, forestry and forest exploitation, transport, and
communication and industry. To achieve the above goals, the NBA shall
be responsible for the following objectives provided under Article 4: -
a) Harmonizing and coordinating the national water
resources development in the Basin;
b) Participating in development planning through
the elaboration and implementation of an
integrated development plan of the Basin
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c) Promoting and participating in the design and
exploitation of common interest schemes;
d) In conformity with the Niamey Act, monitoring and
regulating every form of navigation on the river, it’s
tributaries and sub-tributaries;
e) Participating in the formulation of assistance
requests and in funding mobilization in favour of
studies and works necessary for the development of
the resources of the Basin.
The Authority is further required to keep a permanent contact with member
states in order to share information on development schemes in their
components that concern the Niger Basin. Member states also undertake to
inform the Executive Secretariat about all projects and works that they
would like to undertake in the Basin. Furthermore, they shall commit
themselves to abstain from implementing on the portion of the river, it’s
tributaries and sub-tributaries under their territorial jurisdictions, any
works likely to pollute waters or negatively modify the biological
characteristics of the wild life and flora.
The administration of the Authority is vested in the permanent bodies
which according to Article 5,are the summit of Heads of state or
Government which shall be composed of the Heads of state and
Government or their dully mandated representative. It shall be the supreme
orientation and decision body. It’s decisions and guidelines shall bind all
the institutions of the Authority. Other organs constituting the permanent
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bodies include the council of Ministers; Technical Expert committee; and
the Executive Secretariat.
The Executive Secretariat is the implementing body of the Authority. It is
headed by an Executive secretary responsible for the management of the
Authority and all its structures with a view to implementing the decisions
made by higher organs. The Executive Secretary is especially responsible
for; carrying out all works and studies with the view of achieving the
objectives of the Authority; and formulating all proposals likely to
contribute to the harmonious development of the Authority.
Article 20 provides for dispute settlement. According to this provision, any
dispute that may rise between member states in the interpretation or
application of the convention shall be “Friendly settled through direct
negotiations. Otherwise the dispute shall be brought by either party before
the summit that shall give a final ruling”. Member states for the NBA
include the following republics within the Niger Basin: Benin, Burkina
Faso, Camroun, Cote d’ivoire (Ivory Coast), Guinea, Mali, Niger, Nigeria
and Chad.
3.3.3 Treaty For The Niger-Nigeria Joint Commission (NNJC)
Mindful of their commitments under the convention, creating the Niger
Basin Authority, and under the Convention and statutes relating to the
development of the Chad Basin and being equally aware of the role
which the orderly management of the scarce water resources they share
along the common frontier plays in the economic and social
25
development and well –being of their respective populations living on
both sides of the frontier, the republics of Niger and Nigeria entered
into a water sharing agreement in 1990.It was an agreement concerning
the equitable sharing in the development ,conservation and use of their
common water resources as it relates to river basins which are bisected
by, or form the common frontier between both nations. For purposes of
the agreement, these watercourses were referred to as “shared river
basins”.
The shared river basins to which the Agreement applies are: -
a) The Maggia/Lamido River Basin;
b) The Gada/Goulbi of Maradi River Basin;
c) The Tagwai/EL Fadama River Basin and
d) The lower section of the Komadougou-Yobe River
Basin.
By virtue of paragraph (3), of Article 1, of Part 1 of the treaty, subject to
the provisions of Article 9,a reference to the shared river basins shall
include a reference to underground water contributing to the flow of
surface waters. This provision is of striking significance because of the
reference to underground waters. The NBA treaty does not contain any
reference to underground waters. All reference in that treaty are to the
River Niger, its tributataries and sub-tributaries.
The reference to underground waters by necessary implications is a
reference to waters of the IAS.However, the said paragraph (3), of Article
1,is made subject to the enactment in Article 9.According to Article
26
9;Groundwater resources shall not be accounted for the purpose of
equitable sharing determination unless:-
a) Such resources are past of shared river basin
within the meaning of Article 1,paragraph (3); or
b) Such resources lie in whole or only in part
within the shared river basins and are bisected
by the common frontier between the
contracting parties.
The meaning of Article 9,when properly construed is that only
transboundary aquifer waters or aquifer water forming part of the flow
of transboundary surface watercourse is affected by the treaty. The
Significance of this again is that the waters of the IAS is brought under
the ambit of the Niger-Nigeria Agreement.
The institutional arrangement for the monitoring of the implementation
of the Agreement is contained in part IV.Accordingly,it is provided in
Article II,that the Nigeria-Niger Joint Commission for Cooperation
(NNJC) shall monitor the implementation of the Agreement. A
permanent Technical Committee of Water Experts composed of an
equal number of representatives from the contracting parties shall be
established to assist the Commission in the discharge of its
responsibilities under the treaty. (Article 12).
The NNJC as the enforcing organ of the treaty is charged with the
responsibility for the preparation of the sharing formular as well as
conservation schemes. The commission also has the duty to resolve any
27
difference concerning the interpretation or implementation of the treaty.
Additionally any difference regarding equitable sharing determination
shall be referred to the Commission. In the final analysis, Article 17(2)
provides that any such difference which cannot be settled by the
Commission within six months after a reference to it has been made
shall be regarded as a dispute and shall at the request of both parties be
referred to the Commission of Mediation Conciliation and Arbitration
of the Organization of African Unity (OAU) for binding determination.
This aspect of referring a dispute to a third party is lacking in the NBA
treaty. Yet it is worth pointing out that any reference of a dispute to the
OAU is to be made at the request of both parties and nothing was said
about a situation where in one party refuses to voluntarily go before the
OAU Mediation Commission. A clause allowing for adjudication by the
World Court would make good sense. The African Union (AU) has
now replaced the OAU since July 2002.
The Niger-Nigeria treaty is essentially for the equitable sharing,
development and conservation of rivers common to both countries (and
to the aquifers contributing to their flow).It is of further significance
that the river and basins covered by this treaty are similarly covered by
the NBA treaty.Indeed,Part V.Article 15 of the Niger-Nigeria treaty
specifically requested the parties to inform the NBA of agreed upon
equitable sharing determination concerning the Gada/Goulbi of Maradi
river basin, including any subsequent adjustments thereof, and any
plans, projects and programme for the implementation of such
determination.
28
The entire treaty is founded upon the principle of equitable use. This
principle is more permissive of flexibility in terms of future
development needs of either party. The provision of Part III i.e. Article
5-10 recognize the need to give preference to existing water uses that
are beneficial to the parties alongside the allocation formula that takes
cognizance of such factor as climate, rainfall patterns, surface
hydrology and related hydrogeology, social and economic needs,
availability of alternative sources of water to satisfy competing water
demands, and the need to maintain an acceptable environmental balance
in and around a particular body of water, as well as the dependence of
local populations on the water in question for their own livelihood and
welfare.
3.3.4 Nigeria’s National Water Legislation
Nigeria’s main national water resources legislation is the Water
Resources Decree; 1993.By virtue of this law, the Federal Government
of Nigeria vested in itself the right and control of water. Accordingly, it
is enacted in section 1(1) that the right to the use and control of all
surface and groundwater and of all water in any watercourse affecting
more than one state as described, in the schedule to the decree together
with the bed and bank thereof are without further assurance vested in
the Government of the Federation.
The purpose for which right and control of water is vested in the
Federal government include: -
29
a) Promoting the optimum planning and use of
Nigeria water resources.
b) Ensuring the coordination of such activities as
are likely to influence the quality, quantity,
distribution, use and management of water
c) Ensuring the application of appropriate standards
and techniques for the investigation, use, control,
protection, management and administration of
water resources, and
d) Facilitating technical assistance and
rehabilitation for water supplies.
Under the schedule to the Decree, Source 1 of water sources declared as
affecting more than one state cover the entire Nigeria Segment of the
lullemeden Aquifer System (IAS). Accordingly it is provided in the
said schedule that all water, either surface or underground from time to
time, contained within or flowing or percolating through such sources
and the tributaries and catchments area thereof come under federal
government control. These sources are: -
SOURCE 1- The River Niger from the border between the
federal Republic of Nigeria and the Niger
Republic to the outlet of the Kanji reservoir,
including: -
a) The Sokoto Rima River from the border
with the Federal Republic of Nigeria.
b) All the tributaries of the River Niger crossing the
border to the Benin Republic; and
30
c) The Sokoto sedimentary (western) hydro
geological area.
The above provisions of law provide the legal basis for the Federal
Government’s powers and authority to manage and administer Nigeria’s
interest in the lullemeden Aquifer. The Federal government of Nigeria thus
has the full legal capacity to conclude any agreement or arrangement with
Mali Republic, and Niger Republic, (the other two states sharing the IAS) for
the management of the IAS including soliciting and availing of any foreign
assistance in that regard, as well as any matter relating to the nature and form
of a tripartite arrangement for consultation in the management of the water
resources of the IAS.
CHAPTER FOUR
DISCUSSION OF FINDINGS
4.1 Major Issues and Challenges
Issues of increasing water scarcity, degrading water quality, rapid
population growth, unilateral water resources development, and skewed
levels of economic development holds out potentials for triggering
water dispute among co-riparian states. These issues are just as
pertinent to groundwater. Given that groundwater basins like the IAS
do not conform any better to boundaries or involve lesser externalities
than surface water. The desire for sustainable development and
equitable use of the water resources of the IAS for the benefit of all thus
becomes the “raison d’etre”for the establishment of a tripartite sub-
regional organization for managing the aquifer waters.
31
The legal challenges are mainly the re-examination of the necessary
instruments, whether institutions or tools currently existing and
modalities for rehabilitating or strengthening them, and if required the
creation of a new one on a tripartite basis to ensure that set objectives
are achieved. There is only scant practical experience in joint
management of internationally shared aquifers. Groundwater is only
mentioned in the Nigeria –Niger Joint Commission treaty (NNJC)
without any special attention paid to relevant tools for monitoring and
management of the shared vital groundwater. The other bilateral
protocol of the agreement between the Republic of Niger and the
Republic of Mali relative to cooperation in the utilization of resources
in water of the Niger river (July12, 1988) does not fare any better in
matters of groundwater. There is presently, only bilateral water pact
between Nigeria and Niger on the one hand and between Niger and
Mali. On the other there is no tripartite agreement between the three
states that share the lullemeden Aquifer System (IAS) namely Nigeria,
Niger and Mali, specifically directed towards the use and management
of Aquifer Waters. It may be said however, that groundwater has only
rarely been mentioned in international treaties.
4.1.1.Water Resources Data Bank
Sound data and reliable information constitute the basis of rational
policy formulations and decision-making. Information acquisition, data
analysis, storage and retrieval as well as data and information sharing
are essential to the proper management of transboundary aquifers.
Destitute of knowledge, states sharing a common aquifer system like
co-riparian states sharing a common surface stream become suspicious
32
and hostile especially as it relates to issues of sovereignty, security and
survival of that state.
It is thus in the interest of the three aquifer states i.e., Nigeria, Niger
and Mali to strengthen capacities for information gathering,
dissemination and database. An efficient and reliable database will help
ensure the joint management goals, namely:
Aquifer protection: Any tripartite structure put in place will focus on
long-term protection of the water quality in the aquifers.
Crisis Management: Emphasizing structures that
are required to formulate responses to exigencies
(such as accidental treat of noxious
contaminants), and predictable cases such as
drought.
Efficiency: The thrust would be to use aquifer
waters in the most efficient and equitable way
that guarantees acceptance of all parties.
Sustainability: Whereby the system of artificial
recharge of groundwater may be undertaken in
order to control wet season floods as well as
storing the water (which would otherwise have
flowed to waste) underground to be used in the
dry season.
A databank thus set-up, must be properly and fully supported and made
functional both in the interest of water resources development and of
other general uses.
33
4.1.2 Review and Harmonization of Treaties and Agreements
The existing institutions namely the NBA and the NNJC along with the
legal instruments establishing them have been considered. There is need
to emphasize that only the bilateral cooperation Agreement between
Nigeria and Niger makes reference to groundwater. In the case of
Nigeria and Mali there is even no treaty or agreement of a bilateral
nature between both countries.
Appropriate bilateral or multi-lateral treaties do not by themselves
provide full guarantees that dispute or even conflicts would not arise
between co-riparian states. Changing circumstances and interests over
water right create dynamic processes that impels states to fashion new
responses to emergent situations with a view to attaining new goals.
Agreements and treaties must thus make provisions for comprehensive
conflict resolution. A method that upholds sovereign equality of states.
Under the NBA treaty for instance, the Summit of the Heads of states in
an institutional organ of the NBA.Article 20 on dispute settlement
provide that any dispute in the interpretation or application of the
convention shall be friendly settled through direct-negotiations.
Otherwise, the dispute shall brought by either party before the summit
that shall give a final ruling. Under this arrangement, there is no
provision for reference to third party such as an arbitrator or the World
Court. It is therefore left to speculations as to what should be done
should a dispute defy amicable solution even after a reference has been
made to the summit
34
In contradistinction under Article 17, of the NNJC Agreement, the
Commission is required to handle differences in the first instance. Any
difference, which cannot be settled by the Commission within six
months, shall be regarded as a dispute and shall, at the request of both
parties, be referred to the Commission of Mediation, Conciliation and
Arbitration of the OAU for binding determinations. The provision for
reference to an outside party makes for transparency and serves to
instill confidence in the patties. Thus, any new arrangement should
provide for proper dispute settlement mechanism that recognizes the
role of an impartial third party like the World Court.
The UN convention on the Law of the Non-Navigational Uses of
International Watercourses adopted in 1997 constitutes a veritable
reference point for agreements with prospects for universal application.
The salient features of the convention are broad enough to cover the
framework of any new multilateral agreement on the IAS.
The relationship between the UN convention and the existing NBA as
well as the NNJC Agreement is to be construed in the light of Article 3
of the UN convention. According to Paragraph 1 of the said Article “In
the absence of an agreement to the contrary, nothing in the present
Convention shall affect the right or obligations of a watercourse state
arising from agreements in force for it on the date on which it became a
party to the present convention”. Furthermore, paragraph 2 provides
that “Notwithstanding the provisions of paragraph 1,parties to
agreements referred to in paragraph 1 may, where necessary consider
35
harmonizing such agreements with the basic principle of the present
convention”.
The provisions of the NBA treaty and the NNJC Agreement do not
prohibit member states from ratifying other treaties on international
watercourses or transboundary aquifers. Consequently, and against the
background of Article 3 (2) of the UN Convention quoted above,
members of the IAS (Mali, Niger and Nigeria’s) are at liberty to
harmonize their treaties to enjoy the benefits of the now universally
acclaimed UN convention.
Two key principles of the UN convention summarize the spirit and
aspiration of any collaborative management of the IAS waters. Article 5
and 6 provide for the principal of equitable and reasonable utilization
and participation, and also designate the factors on which this
assessment is made. These include climate, economic, population, other
uses by other riparian states, and the availability of other sources. These
principles are well articulated under the equitable sharing determination
of part III Article 5-10 of the NNJC Agreement. The Major advantage
of this principle is its flexibility in terms of accommodating both old
and new uses arising from existing and new members of an
international watercourses. For the IAS, Niger and Nigeria as existing
members of the NNJC Agreement can easily incorporate Mali therein.
The second principle is the obligation not to cause significant harm,
contained in Article 7,and generally referred to as the “No harm rule”.
Articles 4,of the NNJC Agreement embody an identical principle.
36
The issue of “Significance” of harm has engendered a lot of
commentary as harm considered by a member state to be
inconsequential may be seen as significant or at least appreciable by
another. Equally relevant is the question raised by globalization and the
increased social and economic demands facing modern nations. Thus, is
it still possible for any state to embark upon the use of shared waters
(even where the “Watercourse” is an aquifer) without causing harm to
others?
The principle of the NBA treaty encapsulated in Article3, which
enshrines the goal of regional cooperation in managing common water
resources is not at variance with the principle of equitable reasonable
sharing found in both the UN Convention and the NNJC Agreement.
Part III, Article 11-19 of the UN convention dealing with “Planned
Measures”, makes detailed provision for notification in respect of
planned development measures that have potentials for adverse effect.
In similar manner, Article 4,of the NNJC Agreement provide for
notification of any planned development project “likely to have an
appreciable impact”, just as Article 4(3), of the NBA treaty provides for
member states committing themselves to abstain from implementing
any works likely to pollute water or negatively modify the biological
characteristics of wild life and flora. The states of the IAS can revisit
the notification requirements of the NBA treaty and the NNJC
Agreement with a view to harmonize these with the position of the UN
convention both under part III and part IV which provide for the
protection and preservation of ecosystem and marine environment and
prevention, reduction and control of pollution.
37
The Helsinki Rules are widely adopted as a basis for international
negotiations and collaboration on river basin development. Article 1(1)
of the Helsinki Convention providing definitions, states that for the
purposes of the Convention “Transboundary water” mean any surface
or groundwater, which mark, cross or are located on boundaries
between two or more states. The IAS clearly fits into this description.
Article 3,provides for the prevention, control and reduction of any
significant adverse effect on the environment resulting from a change in
the conditions of transboundary water caused by human activity,
through the adoption of relevant legal administrative, economic,
financial and technical measures.
Additionally, Article 9(2) provides for the establishment of “Joint
bodies” at bilateral or multilateral level to engage in enumerated task
which includes inter alia; the compilation and exchange of data on
pollution sources, the establishment of joint monitoring programs and
alarm procedure, promotion of cooperation and exchange of
information on the best available technology and scientific research as
well as implementation of environmental impact assessment relating to
transboundary water.
These are already grounds significantly covered by the bilateral (NNJC)
Agreement but the bilateral parties Niger and Nigeria can bring Mali on
board this arrangement by a suitable adaptation where necessary to
eliminate any contradictions with the basic principles of both the UN
convention and the Helsinki Rules.
38
The 1991 ESPOO Convention on Environmental Impact Assessment
(EIA) requires a comprehensive assessment of the impact of a planned
activity on the environment with a view to an informed policy-making
exercise. Nigeria has an enabling national law that obligates the
development of an EIA for any project that is likely to affect the
environment such as water related projects are likely to do. For this
reason Nigeria should call for a review of the NBA protocol and the
NNJC Agreement or any new arrangement of a multilateral nature to
include the aspect of EIA.The ESPOO Convention in comparison to
other existing international conventions provides for a higher
requirement of environmental protection for planned activities.
Finally, Article 33,and the annex to the UN convention contain provision
for settlement of disputes. Article 33(1) provides for peaceful resolution of
disputes in accordance with provisions of subsection (2) to (10) of the
same Article. These provision recognize the good offices, mediation or
conciliation by a third party, or as appropriate, the use of any joint
watercourse institution, or the submission of the dispute to arbitration or to
the international court of Justice.The process of harmonization of the NBA
treaty and the NNJC Agreement or the adaptation of any new accord may
thus be done to bring such into line with the UN convention.
4.2 Tripartite Cooperation Arrangement
The Stated objective of the present assistance is to establish a mechanism
for permanent tripartite consultation for the coordinated and sustainable
management of the shared Iullemeden Aquifer System. Preceding
39
observation has been made to the effect that there presently exist no
tripartite joint management structure among the three countries (Mali,
Niger and Nigeria) sharing the IAS.The Susceptibility of aquifers to
pollution, their tendency towards salinization when overdrafted, the lack of
certainty about their structure flows, and their interrelations with other
water bodies gives rise to a universal recognition that groundwater is best
managed through a comprehensive approach. In transboundary situations
such as is the case with the IAS; this calls for joint or coordinated
management. International law as pointed out earlier does not provide
much assistance in structuring joint management institutions given its
traditional focus on allocation of freshwater from surface watercourses.
Any effort therefore at identifying relevant structure for the management
of shared trans-boundary aquifers should not look up to traditional models
of water institutions ideally suited for surface water resources
management.
The management of an aquifer calls for decisions to be made on a plethora
of interrelated matters. The issues that require decisions include pumpage
rates, pollution control, drought policies, protection measures, monitoring,
recharge enhancement projects, wastewater treatment and reuse policies,
and crises management measures. Additionally, research coordination and
data sharing, models and expertise facilitates effective and efficient
management regime. Joint management implies that institutional structures
allowing the coordination of such activities will be established. All these
features can thus serve as bases for joint management effort, though not all
of them should necessary is included in any specific joint management
structure (Feitelson and Haddad 1998).
40
Given the limited international experience in the joint management of
underground water it is not advisable to insist on any one particular model
of institution or structure since it is possible that various viable option may
not have been tried or implemented before. In the final analysis the next
(concluding) chapter of this report will present a range of structures as
possible options., The IAS states,however,should bear the following
criteria in mind in adopting any cooperative water management structure.
1.Flexibility An effective joint Water Management structure should allow for a degree of flexibility, allowing for changing basin priorities, the availability of alternative sources of water to satisfy competing water demands, new information and monitoring technologies, and changing societal values.
2. Sustainability The extent to which the structure would enhance resources protection, facilitate adequate responses to emergencies and crisis management. The structure will thus fashion responses to situations such as droughts and instances such as inadvertent spills of industrial/chemical contaminants.
3.Conflict Resolution Mechanism The signing of a water treaty may not guarantee the total absence of disputes. The Joint Water Management Structure should incorporate clear mechanisms for conflict resolutions as well as possess the ability to monitor and verify the agreement so as to remove the potential for future discord.
4. Sovereignty It is settled law and well-known fact that the infringement of sovereignty provide a significant irritation in trans-boundary environmental action. If the Joint Water Management Structure is to succeed in its mandate, clear provisions must be made as to the limit of its jurisdiction and competence
41
CHAPTER FIVE
CONCLUSION AND RECOMMENDATION
5.1 Conclusion
There is yet only scant practical experience in joint management of
internationally shared aquifers. Given the limited international
experience in the Joint Management of underground waters it is not
advisable to insist on any one model of institution or structure and then
describe it as the most suitable for the IAS.Borrowing from the position
articulated by Feitelson and Haddad (1988) a stepwise open-ended
approach to the identification of joint management structures for shared
aquifers is to be preferred. This approach strives to identify diverse
possible alternatives for structuring the management of and aquifer as
opposed to the concentrating of attention on a single “best” solution.
The objective in the circumstances is to assist in facilitating the task of
decision makers and policy analysts in identifying and implementing
the institutional development path that is more appropriate to their
specific circumstances. The flexibility of this approach allows for the
consideration of option not previously tried. The quest for appropriate
form of joint management structure for the IAS should not therefore be
limited to adaptation based only on past experience.
5.2. Recommendations
The ensuing basic structures enumerated below represent only a first
step toward a joint management structure as they can be related to one
another in a variety of combinations or in multiple forms. Details of any
chosen form or combination of forms remains a matter for further
42
discussion and exchange of ideas by experts as envisaged under the
Terms of Reference. The present effort is therefore in the nature of
proposals on the mandate, nature and form of a tripartite arrangement
for consultation in the management of the water resources of the
IAS.The following options are hereby put forward: -
1
LIKELY JOINT MANAGEMENT STRUCTURE
STRUCTURE TASK REQUIRED PERSONNEL
TYPE
Apportionment monitoring
body
Monitoring extractions and
Compliance
Separate staff (professional
hydrologists)
Investigation advisory body Investigation of technical
disputes
Administrative staff only
Technical research body Initiate and coordinate
research
Administrative staff
Aquifer monitoring body Monitor Water quality and
quantity
Joint or separate hydrological
staff
Economic development body Plan and coordinate econom
development over aquifer
Technical, economic and
engineering staffs
Project Management body Manage and coordinate wate
projects
Economics and engineering
Staff
2
Joint regulatory body Protect aquifer Planning, legal and technical
Integrated aquifer managemen
body
Manage aquifer Moderate size
Comprehensive
Centralized aquifer
management body
Manage aquifer Large staff, comprehensive
Water transfer and market
administering body
Administer water market Moderate size economic,
Legal, and engineering
Risk management body Prepare for and manage
emergencies
Separate technical staff
Pollution control body Aquifer protection Separate legal planning and
hydrological
Resources conservation body Promote water conservation Small separate technical staff
Resources apportionment bod Discuss apportionment issue Minimal joint administrative
staff
Training establishment Train professionals Minimal joint administrative
3
and professionals
Arbitration body Dispute resolution Small administrative
Water Utility Water Supply Large professional
Wastewater utility Wastewater treatment Comprehensive staffs
1
5.3. Concluding Remarks
There are diverse ways by which the above structures may be combined
and aligned, depending largely on the optional directions that an
institution building initiative may take. Thus, a key requirement would
be an agreement by decision makers on what goals they would like the
joint management structure to attain. Following this, the structures
would then be fashioned by water experts and other specialists to
address these goals in a graduated manner, commencing as it were, with
steps that hold low potentials for disagreement and which do not
infringe on sovereignity. Functions or tasks with likely potentials for
discord or which may necessitate higher management cost can be added
subsequently. Future additional goals can be earmarked and the
structures adapted accordingly.
The larger interests of beneficial use of water and economic prosperity
demand that a clean, viable and sustainable joint management structure
for the administration of IAS waters be preserved through legislative
and institutional methodologies at once flexible and dynamic but
always motivated and moderated by the felt necessities of the time. This
approach anchored on treaty will witness the present bequeathing to the
future a water legacy capable of enduring unto generation yet unknown.
2
ACKNOWLEDGEMENT
Grateful acknowledgement is made in the most emphatic terms to Dr
G.E.Oteze.eminent hydro geologist and pioneer researcher on the
hydrogeology of the North-Western Nigeria Basin, for providing useful
information and relevant literature on the basin. Engineer R.A.Habu of the
Department of Water Supply and Quality Control, Federal Ministry of
Water Resources Abuja, is remembered for encouraging me to accept this
assignment and also for providing useful literature on water treaties.
Thanks to Messrs M.H.Ibrahim, Director, Department of Hydrology of
Hydrogeology FMWR and Dr John Chabo Deputy Director in the same
department for inviting me to undertake this assignment. Mr Ogundele was
supportive throughout the process leading up to the commencement of this
work. I am particularly grateful to all authors whose works I consulted
especially Dr Eran Feitelson and Dr Marwan Haddad whose expertise
illuminated my thinking especially on the recommendation of structures.
Mr Ade Adeniyi of the Department of Planning Research and Statistics,
FMWR assisted with copies of the NBA and NNJC treaties. It is in the
fitness of things that the author accepts full responsibility for any errors or
omissions in this report as well as for any traces of confusions of thought
and infelicities of style.
3
REFERENCES
Benvenisiti, E.”Collective Action in the Utilization of shared freshwater: The Challenges of International Water Resources Law,” The American Journal of International Law 90,1996
Everett, L.G. Groundwater monitoring, Schenectary N.Y. Feitelson, E. and
Haddad, M. “A stepwise Open-Ended Approach to the Identification of Joint Management Structure for Shared Aquifers”. Water International, December 1998
Guy Le Moigne, et al (eds) “A Ginide to the formulation of Water
Resources Strategy” World Bank Technical Paper 263 Hammer and Wolf, A.”Patterns of International Water Resources Treaties:
The Tran boundary freshwater Dispute Database” Colorado journal of International Environmental Law and Policy1987 Yesibook
Hayton, R.D.”The Law of international Aquifers”, Natural resources
journal 22,1982 Ireland, R.L. “Land Subsidence in the San Joaquin Valley, California as of
1983 “US. Geological Survey Water Resources Investigations Report no 85-4196
Narenda, P.S.etal,”African Water Resources –Challenges and
Opportunities for Sustainable Development World Bank Technical Paper 331
Oteze, G.E.” The Hydrogeology of the North-Western Nigeria Basin “
Geological Survey of Nigeria, 1972 Poland, J.G and Evenson, R.W.” Hydrogeology and Land Subsidence,
Great Valley, California, “in Bailey, E.H; Geology of Northern California. California Division of Mined and Geology Bulletin.190 1966
UNEP: “Atlas of International Freshwater Agreement “2002
4
WRMS 2001 “Trans-boundary Water Group-Draft Final Report “ FMWR, Abuja Nigeria
Treaties and Agreement
Espoo Convention on Environmental Impact Assessment, 1991
Niger Basin Authority Revised Convention, N’djamena 1987
Niger-Nigeria Agreement Concerning the Equitable Sharing in the
Development Conservation and use of their common Water Resources
1990
South African Development Community (SADC) Protocol 1995 UN
convention on Non-Navigational uses of International Watercourses 19997
UN/ECE Convention on the Protection and Use of Trans-boundary
Watercourses and International Lakes, Helsinki 1992
Water Resources Decree, No 101 of 1993-Federal Republic of Nigeria
5
NATIONAL LEGAL CONSULTANT
I.J Goldface –Irokalibe
B.A.Econ; MDMM; LLB; BL; LLM; PH.D.
Natural Resources Lawyer, and professor of Water Law and Water Law
Administration. Member and Resource person, WA-Net (West African –
Network for Integrated Water Resources Management IWRM). Member
globe-net, (Global network for Integrated Water Resources Management
IWRM) Legal Consultant on National and International Water Law.
6
ABBREVIATIONS
ADB : African Development Bank AU : African Union EIA : Environmental Impact Assessment FMWR: Federal Ministry of Water Resources GEF : Global Environmental Facility IAS : Iullemeden Aquifer System IWRM: Integrated Water Resources Management NBA : Niger Basin Authority NNJC : Niger-Nigeria Joint Commission NWRI: National Water Resources Institute OAU : Organization of African Unity SADC: South African Development Community TOR: Terms of Reference UN : United Nations UNCED: United Nation Conference on Environment and
Development (Rio de Janeiro 1992) UN/ECE: United Nations Economic Commission for Europe UNEP: United Nation Environment Programme
8
Executive Summary
The lullemeden Aquifer System (IAS) covers an area of approximately 500
000 Km2, of which about 31,000 Km2 in Mali, 434,000 in Niger, 60,000
Km2 in Nigeria. The lullemeden is a multi-aquifer system composed of
inserted Cretaceous Continental Intercalaire sedimentary formations and
with overlying final Tertiary Continental Terminal regroupings. The IAS is
an ernomous strategic reserve of high sub regional significance that equals
50 years of the flows in the Niger River. The IAS benefits from an
appreciable contemporary recharge, mainly from seasonal infiltration from
river valley bottoms and from wetlands connected to the aquifer system.
Changing land-use and deforestation in the recharge area of the aquifer and
in the wetlands are a source of major risk with a potential for
transboundary impact. The risk and uncertainty of climate change, the
anticipated increase in the development and extractions from the aquifer
and the risk of pollution from surface watercourses, all contribute to the
potential for transboundary conflict.
Against this backdrop. The three countries sharing the IAS requested and
obtained financial assistance from the Global Environmental Facility
(GEF) in support of a project styled “Managing Hydro-geological Risk in
the lullemenden Aquifer System”. The project includes intervention of
national and international /regional expertise from different disciplines and
from different center and agencies. This provided the rationale for the
appointment of the National Legal Consultant to collect, analyze and
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assess the national legislation and the existing arrangements and
agreements at the bi-and trilateral level as well as the documents of a legal
nature of relevance to the management and development of the water
resources of the IAS.This is with a view to formulation of proposals on the
mandate, nature and form of a tripartite arrangement for consultation in the
management of the water resources of the IAS.
The National Legal Consultant carried out his assignment in accordance
with the terms of reference by which he assembled and reviewed existing
data including hydrological, technical, legal and other significant records,
reports, academic researches and other reference materials from 15
November 2004 to 28 February 2005.
The present report records the outcome of the investigation. The Executive
summary is herein presented preceding the introduction, which gives the
general compendium information about Nigeria’s segment of the IAS and
the Nigerian Legal Consultant’s application to his assignment.
Chapter one discusses the IAS proper. It considers such issues as the
dynamics of trans-boundary aquifer management, institutional
development in groundwater management, and groundwater issues. These
issues include groundwater quality, land subsidence and surface water
flow. Nigeria goals, objectives and concerns in IAS water management is
summarized as ensuring the protection of her interest in this vital
resources, while simultaneously recognizing the right of other “co-
riparians” to enjoy the benefit of the same resoueces. This can be achieved
through enhancing regional consensus and collaboration, integrated basin
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wide development strategy and external support for project
implementation.
Chapter two deals with Methodology. The work done is narrated, the
means and ways of data collection, the visits undertaken and the
framework employed for the analysis.
Chapter three highlights the salient findings of the study. It deals with the
legal issues from the angles of national water legislation i.e, Nigeria’s
Water Resources Decree, 101 of 1993,the Niger Basin Authority Treaty,
and the Niger-Nigeria Joint Commission Agreement. These are considered
documents of a legal nature of relevance to the management and
development of the water resources of the IAS.
Chapter four disuses the findings and carries further the analysis of the
instruments considered the preceding chapter. The major issues and
challenges identified includes the need for water resources data bank, the
review and harmonization of treaties and agreements with the UN
convention on the Non-Navigational uses of International Watercourses
and the famous Helsinki Rules as a basis for international negotiations and
collaboration.
In discussing tripartite cooperation arrangement it is pointed out that
international law does not provide much assistance in structuring joint
management institutions given its traditional focus on allocation of
freshwater from surface watercourses. Given the limited international
experience in the joint management of underground water it is not
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advisable to insist on any one particular model of institution or structure.
The IAS states, however, should bear the following criteria’s in mind in
adopting any cooperative water management structure, namely: flexibility,
sustainability conflict resolution mechanism, and sovereignty.
Chapter five is the last and concluding chapter of this report. The chapter
summarizes the report, puts forward recommendations in form of a wide
range of options of likely joint management structures and anchors the
report with concluding remarks.