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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

7

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.

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