Final Report ANALIZIS OF WATER LAW OF GUYANA AND A STRATEGIC APPROACH FOR THE ...

141 Pages·2014·2.87 MB·English

Fundo Para o Meio Programa das Nações Unidas para
Ambiente Mundial o Meio Ambiente

PROJECT INTEGRATED AND SUSTAINABLE
MANAGEMENT OF TRANSBOUNDARY WATER
RESOURCES AMAZON BASIN CONSIDERING
CLIMATE VARIABILITY AND CLIMATE CHANGE
ACTO / GEF / UNEP

Subproject -I.2 Strengthening legal and institutional systems of
the countries of the Amazon Basin
Activity I.2.2 – Harmonization of the
Legal Framework

Final Report

ANALIZIS OF WATER LAW OF GUYANA AND A
STRATEGIC APPROACH FOR THE HARMONIZATION
OF NORMS

Brasília, DF - BRASIL
PROJECT INTEGRATED AND SUSTAINABLE
MANAGEMENT OF TRANSBOUNDARY WATER
RESOURCES AMAZON BASIN CONSIDERING
CLIMATE VARIABILITY AND CLIMATE CHANGE

PROJECTO GEF AMAZONAS – ACTO / GEF /
UNEP

Activity I.2.2 – Harmonization of the Legal Framework
Final Report

ANALIZIS OF WATER LAW OF GUYANA AND A
STRATEGIC APPROACH FOR THE HARMONIZATION
OF NORMS

Activity
Coordination

Norbert Fenzl
Solange Teles da
Silva

Consultant
Teni Housty

September /2014
Executive Summary

The Amazon Cooperation Treaty (ACT) set as its main objective to undertake joint
efforts to promote the harmonious development of “their respective Amazonian
territories” so that these joint actions produce equitable and mutually beneficial, as well
as the preservation of environment and the conservation and rational use of natural
resources in these territories (art. 1). Signed at Brasilia at 7th March 1978, the Republics
of Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela, the TCA
entered into force on 2nd August 1980, thirty days after the deposit of the last instrument
of ratification of the treaty by Venezuela. Its scope covers the territories of the
Contracting Parties in the Amazon Basin, or in other words, “any territory of a
Contracting Party which, by virtue of its geographical, ecological or economic
characteristics is considered closely connected with that Basin”.

On 14th December 1998, the Amazonian countries started a process of institutionalization
of a common vision of the region and strengthening the TCA. In this sense, they signed
the Protocol of Amendment and agreed to the creation of the Amazon Cooperation Treaty
Organization (ACTO). Installed with permanent headquarters in Brasilia in 2002, ACTO
is endowed with legal personality and is an organization with a specific mandate of the
eight countries in the region to foster the adoption of mechanisms of cooperation on
management of natural resources in the Amazon Continental region, which extends for
about 40% of the territory of South America.

In the current context, the member countries of the Amazon Cooperation Treaty
Organization (ACTO) sought the support of the Global Environment Facility (GEF) to
help develop a project proposal (international waters area) that was approved. The project
“Integrated and Sustainable Management of Transboundary Water Resources in the
Amazon River Basin Considering Climate Variability and Climate Change”
(ACTO/GEF/UNEP) seeks to strengthen the institutional framework to effectively

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initiate water resources management through planning and executing coordinated
activities for the protection and sustainable management of the land and water resources
of the Amazon River Basin. Considering on an understanding of the challenges and
current issues and future management of water resources in the Amazon basin, GEF-
AMAZON Project will develop a Strategic Action Program (SAP) that will address
tansboundary water resources management concerns shared by Basin countries.

GEF-AMAZON Project has been structured in five components. COMPONENT I.
Understanding the Amazon Society, COMPONENT II. Understanding the Natural
Resource Base of the Amazon Basin, COMPONENT III. Response Strategies,
COMPONENT IV. Project Management and COMPONENT V. Monitoring and
Evaluation. This consultancy is at COMPONENT I Understanding the Amazon Society.
Subproject -I.2 Strengthening the Legal and institutional. Activity I.2.2
Harmonization of Legal Framework.

The general objective is to obtain information about current legal norms on the
management of water and related issues in the 8 (eight) member countries of ACTO
in order to identify the similarities and differences and possible between national
legal systems.

Thus, the main products are: 1) Inventory data of legislation on water resources,
biodiversity and climate change in the Amazon Basin, 2) Analysis of the management
of resources water principles and mechanisms in the legal systems of the Amazon Basin
countries; 3) Inventory of applicable international legal instruments in the Amazon
Basin.

The consultant team (coordinator and national legal experts) had prepared
methodological protocols for conducting inventories data legislation, as well as to make

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an analysis of the legal principles and mechanisms of water management in their
respective countries. Then, a working meeting with the team has been held on 13th and
14th November, in which we presented the results of the work of each of the consultants
and analyzed the similarities and differences of principles and rules on water resources
in the domestic law of Amazon countries. Under a participatory methodology approach
were identified opportunities and obstacles to the harmonization of legislation in the
region and outline strategies of program actions.

The results of this consultancy are based on individual reports submitted by the legal
national experts of the 7 (seven) member countries of the Amazon Cooperation Treaty,
which are: Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname. There is a lack
of data of Venezuela laws, because the procedure for hiring national legal expert is
depending on approval.

The Final Report for Guyana comprises the following eight chapters :
1) Introduction
2) Environment and water resources constitutional regime
3) Legislation on water resources at the national level
4) Legislation on water resources at the subnational level
5) Sectorial perspectives - inventory and analysis of standards
6) Relationship between climate change, biodiversity and forests
7) Hemispheric
8) Conclusion

Guyana when translated from an Amerindian dialect means ‘land of many waters.’ In
Chapter 1 the recognition of the importance of water is identified in several national
instruments including the National Anthem, the National Flag and the Coat of Arms.
This chapter further identifies the legal system in Guyana as being a constitutional

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democracy, with the Constitution as the supreme law of Guyana, over other laws. The
High Court as the court of original jurisdiction which deals with most judicial decisions
regarding water related disputes is further highlighted in Chapter 1.

Chapter 2 considers the constitutional regime in regards to the environment and water
resources. This Chapter highlights the absence of rules within the Guyana Constitution
which specifically deals with water resources. However the positive right to environment
contained in Article 149J of the Constitution is identified, within the Chapter. The rights
related to water are considered to be included in the right to the environment. The right
to the environment is a right which is to be progressively realised by the State. The
extent of the realisation of this right would be adjudged by the High Court. However, to
date there remains no judicial decision of the Constitutional jurisdiction of the High
Court of the Supreme Court of Judicature regarding control of water resources or the
environment.

Legislation on water resources on domestic national level has been the object of Chapter
3. Chapter 3 is the longest of the chapters of this report. It provides affirmative answers
with examples to several questions related to water resources at the national level.
Expressed provisions in legislation supporting a system of water resources management
in the form of the Water and Sewerage Act are discussed. These provisions support the
participation of several levels of government as well as civil society in the management
of water resources. The main judicial decision regarding shared water resource
management is also discussed in Chapter3.

Chapter 3 further identifies laws related to the management of watersheds, the integrated
management of surface and groundwater and the integrated management of water
quantity and quality. Additionally the few provisions which relate to multiple utilization
are discussed as part of Chapter 3. Though not generally vulnerable to disasters the

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provisions in various legislations, such as the Environmental Protections ( Water
Quality) Regulations, Drainage and Irrigation Act, Water and Sewerage Act , which deal
with cases of critical events are also noted in Chapter 3. Guyana is administratively
divided into counties, regions, municipalities and other structures. The management of
water resource by these bodies are further discussed in Chapter 3.

Chapter 3 further discusses the laws which govern water use licences and permits. The
importance of categories of water users, the rates of approved payments and plans for
management of resources in Guyana are also captured in Chapter 3. There are however
no judicial decisions which are the subject of discussion in Chapter 3.

Regarding the sectorial perspective, Chapter 4 presents the role of municipalities and
other bodies in the management of water resources. There appears to be no conflicts of
authority among these bodies. From the perspective of other legislation of interest the
Protected Areas and Access to information legislation are both highlighted in the
concluding parts of Chapter 4. Chapter 4 also notes the absence of judicial decisions
regarding water resources and conflict authorities.

In Chapter 5 sectorial perspectives together with an inventory and analysis of standards
are discussed. The expressed provision on the requirement of environmental impact
assessment in outlined circumstances contained in the Environmental Protection Act is
discussed in this chapter. The rules on: fishing, aquaculture, mining, ornamental fish,
navigation, ports, gas stations, floating gas stations, exotic species, , pesticides, dams,
hydroelectric plants, waterways, and sanitation and urbanization are also identified. This
inventory provided the basis for establishing that there is a need for coordination among
the various sectors and stakeholders with an impact on water resource management.
Also highlighted in Chapter 5 are the provisions in the Mining Regulations that seeks to
minimize the environmental consequences of mining.

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In Chapter 6 the relationship between the rules on climate change, biodiversity and
forests as well as the relationship between forests and water. The possibilities for
protection and management of water resources are also discussed in this chapter.
Chapter 6 identifies the various policies, plans, and strategic documents which
recognizes the linkages among climate change, biodiversity and forests as well as the
laws which recognizes the linkage between forests and water. Climate change is an
important strategic priority in Guyana, and while there are no climate change specific
laws in Guyana, there are several national strategy instruments which endorse the
strategic importance of climate change. The new forest laws and the linkages between
these and the environmental protection laws are positively discussed in Chapter 6.

In Chapter 7 the possibilities and obstacles for harmonization of legislation, considering
the potential of regionalization of actions for the management of water resources in the
region are highlighed. These capabilities were especially subject to discussions at the
workshop held on 13 and 14 November 2013. The results of which are pointed -
highlighted in Table 2.

Chapter 8 presents a positive conclusion regarding the objectives of the project from
Guyanese perspective.

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TABLE OF CONTENTS
Pages:

1. Introduction 13

1.1 Form of government and State form. 16
1.2 Family and Type of Norms. 17 – 18
1.3 Customary norms and judicial decisions. 19

2.1. Environment and water resources constitutional regime 20 – 21

2.1.1 Constitution rules and comments about the protection and 20
management of the environment and water resources, as well
as the relationship between traditional populations and water
resources.
2.1.2 Constitutional text and allocation of powers (distribution or 20 – 21
division of competences) on environmental protection and
water resources
2.1.3 Is there judicial control of constitutionality? Explain. Is there 21
a decision of the constitutional court over water or
environment? Commentaries.

3 Legislation on water resources at the national level 22 – 54
3.1 System of water resources management

3.1.1. Is there express provision in the legislation of a 22 – 25
system of water resources management or is the
existence of this system in the legislation
implied?
3.1.2 Is there participation of government (Federal, 26
State, Municipalities) on the water resource
management?
3.1.3. Is there participation of civil society on the 26
management of water resources?
3.1.4. Is there any relevant judicial decision relating to 27 – 29
water resources management?

3.2.2. Instruments 30

3.2.2.1 Management of watersheds 30 – 31
3.2.2.2 Integrated management of surface and 31 – 35

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groundwater
3.2.2.3 Integrated management of water quantity and 36 – 38
quality
3.2.2.4 Multiple Utilization 39
3.2.2.5 Protection against critical events 39 – 42
3.2.2.6 Management of waters of local interest by 42 – 44
municipalities
3.2.2.7 Priority needs of the population 44 – 46
3.2.2.8 Granting the use of water resources and their 46 – 49
criteria
3.2.2.9 Payment for water use 49 - 50
3.2.2.10 Management Plans 51 – 54
3.2.2.11 Conflict Management 54
3.2.2.12 Are there any relevant judicial decision on tools 54
of water resources management?

4 Legislation on water resources at the subnational level 55 – 56

4.1 What is the role of the State and Municipalities / 55 – 56
Government departmental and municipal authorities /
departments, provinces and districts?
4.2 Are there conflicts of authority in this issue? 56
4.3 Are there any subnational legislation that could be 56
interesting to highlight?
4.4 Is there any relevant judicial decision on tools of water 56
resources management involving conflicts of authorities?

5 Sectorial perspectives - inventory and analysis of standards 57 – 70
5.1 Economic activities: are there rules on environmental 57 – 58
permitting, public hearing and environmental assessment?
What is the relationship with these norms and the protection
and conservation of water resources?
5.2 Rules on fishing, aquaculture, mining, ornamental fish 58 – 60
5.3 Standards for navigation, ports, floating gas stations, exotic 61
species
5.4 Regulations on mining - use of mercury and heavy metals? 61 – 63
5.5 Standards for agriculture, pesticides and agroecology - 63 – 65
irrigation and use of floodplain?
5.6 Are there rules on hydroelectric plants and waterways? 66
5.7 Are there are norms on sanitation and urbanization? 67 – 70

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