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Water Supply Act Legislative Review (Final Report) 2014 [2014] VULawRComm 3 (1 September 2014)

WATER SUPPLY ACT

LEGISLATIVE REVIEW

NO.03/14

© 2014

All rights reserved.

This publication may be reproduced, as a whole or in part, provided that acknowledgement of the source is made. Notification of such would be appreciated.

March 2014

Authors: Nadya Robert, Sammy Aron, Powrie Vire, and Bill Clarke

Editors: Nadya Robert, Sammy Aron, Powrie Vire, Bill Clarke, Bertha Pakoasongi and Charlie Mangawai

Design and layout: Sammy Aron

Printing: Colorite Printers

For further information and request for copies, contact:

Vanuatu Law Commission
Top Floor, Melitco House
PO Box 3380, Port Vila, Vanuatu
Tel: +678 33 620
Email: [email protected]

The Vanuatu Law Commission is grateful to AusAID for their financial support of this review.

ACKNOWLEDGEMENT

This report would not have been possible without the people who gave their time, freely, to participate in this review. We would like to thank the communities and professionals who contributed their valuable thoughts and experiences.

Communities:

Etas (Efate), Ikaokao (Aniwa), Waena (Epi), Craig Cove (Ambrym), Loh community (Torres), Fanafo Hydro (Santo), Nasawa (Maewo).

Staff at the Department of Geology, Mines and Water Resources:

Christoper Ioan (Director)

Erickson Sammy (Manager of Water Resources Department)

Others:
The staff in some of the provincial administrations, municipalities, non-governmental organizations, government departments, and statutory bodies, as listed in Appendix 1.

Vanuatu Law Commission Team:

Bertha Pakoasongi (Secretary), Lessy Joel (Administrative Assistant),

Powrie Vire (Senior Legal Researcher), Sammy Aron (Legal Researcher), Nadya Robert (Legal Researcher), Charlie Mangawai (Legal Researcher), Bill Clarke (Volunteer Advisor),

Sponsors:

AusAID Stretem Rod blong Jastis, Vanuatu Government.

FOREWORDS

The need for reform in Vanuatu was one of the driving factors for the establishment of the Vanuatu Law Commission as much of the laws had remained relatively unchanged from pre-independence and post-independence.

The Water Supply Act as well as the Water Resource Management are two separate legislation that deal with one fundamental element that are integral part of our daily lives, as such water, water is life with that comes the responsibility for all human beings to be responsible for the safety and supply of water for the Republic of Vanuatu.

Vanuatu’s population has now numbered from the last census to 234,000 and majority of that population (75%) are out in the rural areas.

In 2012 the Vanuatu Law Commission received a request from the Department of Geology, Mines and Water Resource. One of the reasons provided in the request were the legislation was out-dated.

The Vanuatu Law Commission considered and approved for reviewing the Act and the office of the Secretary began the task of preparing for the review. The office prepared an Issues Paper on the topic and started its first phase of the review by inviting stakeholders to a workshop in 2013 where different considerations were presented to the stakeholders to invoke thought when making their submissions on their views of what needed to be changed in the legislation. I would like to show a bit of what was in the Issues paper from the Water Supply Act;

“The current Act that deals with water supply now warrants a review. In the last 27 years, water supply delivery involved two different government departments that address urban water supply and rural water supply”.

You will see in this report that the findings and recommendations in this report will give you an understanding as to whether this arrangement has been working or not then how will we need to rectify the current situation so as to bring the legislation to a current form, rather than operating with a law that is no longer applicable to today’s society.

So you see Vanuatu has come a long way since independence in 1980, and with all developments, will arise challenges and the main challenge for Vanuatu through its Water Supply Act 9 of 1985 is to provide more detailed recommendations to provisions within the Act to be able to better monitor, water safety planning, water use efficiency around Vanuatu.

Therefore, it is with great pleasure that I would like to present this report regarding the review of the Water Supply Act 9 of 1985. This report contains the findings and recommendations on what areas within the legislation will need reform.

I would like to take this opportunity to thank the Ministry of Justice and Community Services and Stretem Rod Blong Jastis (AusAid) project without your support this would not have been possible as well as to the Government of Vanuatu for giving us this opportunity, and to all stakeholders and the people out in the communities and provinces that were consulted. This report would not have been possible without you.

Bertha Pakoasongi

Secretary of the Law Commission

ABBREVIATIONS

EXECUTIVE SUMMARY

In 2013 the Vanuatu Law Commission received a request to review the Water Supply Act and Water Resource Management Act. This followed a paper on National Water Strategy issued by the Department of Geology, Mines and Water Resources. This National Water Strategy 2008-2018 was funded by New Zealand’s International Aid and Development Agency.

After consultations in the provinces, including community consultations on Tanna, Aniwa, Epi, Ambrym, Santo, Loh (Torres), Vanualava, Ambae, Maewo and Efate, the main messages to the VLC were that water supply and water management should only be under one responsible department and that improving the quality & quantity , safety planning of water supply, managing water fees/tariff towards maintenance and improvement of new water supply apparatus should be the focus of the Water Supply law and policies.

As a result the VLC has completed this review regarding major parts of the Water Supply Act. Other legislations also related to the water supply act have also been identified in the report as outdated and needing much improvement and the general recommendation is that any laws for that matter which affects the supply of water in Vanuatu should be improved.

The review found wide support about the current Act to be changed so that only one department is to look after the supply of water and management of water resources, but should be liaising with the other different departments to ensure the supply of water is available in both rural and urban areas of Vanuatu. The VLC recommends that the Department of Geology, Mines and Water Resources be solely responsible for the supply and management of water resources.

Consultations also showed the people wanted our current Act to be changed so that the water fees must be updated to reflect the economical context of each area and that a portion of the fees be set aside for maintenance and improvement of water supply apparatus .The VLC recommends that the current Act should provide a general law to re-inject that portion of the water revenue for maintenance purposes in the rural areas. Also by regulation, the Rural Water Committee will be responsible to set water tariff in the rural areas while the URA manages the water tariff in the concession areas.

Many people throughout Vanuatu are worried about the rising water offences that affect the supply of water such as cutting and destruction of water pipes and illegal tapping of water in both rural and urban areas. The people also supports that there should be separate penalties and punishments for individual persons and a higher punishment for organizations. The VLC recommends that the current Act must provide specific penalties to punish offenders of such offences. And there should be cooperation between law enforcement agencies and the water committees to enforce the water laws throughout the country.

People across Vanuatu spoke of the need to have a national water quality standard, to ensure that water use for drinking, domestic purposes and recreational use of water is safe and fit for human consumption. There should be a standardised testing method and guidelines for testing the quality of water. The VLC recommends that the responsible department of water must establish a National Water Quality Standards and a standard methods and guideline of testing water quality. We also recommend that such documents must be gazetted to be legally recognised.

Other recommendation, for the responsible authority of water must regularly monitor and test the quality of water in both rural and urban areas at least 2 times in one year.

Many people spoke of the need to have a National standard of water safety planning for all water resources within the country to ensure that water supplied to consumers is consistently safe to drink and to manage potential risks from catchment to consumers. The VLC recommends that the current Act must cater for the water safety planning for both rural and urban areas and that there is enforcement mechanism in place to enforce and regulate such planning.

In this report, it contains detailed recommendations and drafting instructions for the new water supply laws, and the suggested reviews of a number of related laws such as Utilities Regulatory Authority Act, Water Resource Management Act and Public Health Act. The drafting instruction is a guideline for the State Law Office to draft the recommended new water supply laws.

CONTENTS

1. Acknowledgment
2. Foreword
3. Abbreviation
4. Executive Summary
5. Contents
   1. Introduction
   2. Chapter 1: Water Supply Managed by two Departments
   3. Chapter 2:Updating Water Tariff & Incorporating a Provision

To re-inject Water Tariff

4. Chapter 3: Illegal Tapping
5. Chapter 4: Water Quality
6. Chapter 5: Water Safety Planning
7. Chapter 6: Other Laws & Issues
8. Conclusion

Appendix 1: List of consultation
Appendix 2: List of Sources

INTRODUCTION

Boy fetches water-a village in Tanna.
The current Water Supply Act has been effective in Vanuatu for over 50 years. It started off as the Water Supply Joint Regulation and operates as Joint Regulation up until 1977. In 1985 it became an Act for the Republic of Vanuatu. It is an act that provides for connections to the public water supply, the regulation of the water supplied by the government and the maintenance and protection of the water supply undertaking. It commenced 25 years before Vanuatu became independent, on 3^rd January 1955. Thus, it is highly likely that the Act would become outdated and inappropriate in this day and age. The current law has some limitations which poses difficulties to authorities to effectively implement the law fully.

Minor changes to the Act happened in 1993. The first amendment happened on the 21^st of June 1993, where the principal Act was amended by inserting a new Part (III), entitled “Agreement or contract for the provision, development, management and maintenance of water supply within the area of concession”. The amendment provides for a contract or agreement that may be concluded by the Minister with any legal entity for purposes of granting that entity the sole concession for the provision, development, management and maintenance of water supply to the public within the area of concession. Any person other than the Concessionaire who provides supplies or manages public water supply within the area of concession shall be guilty of an offence. It shall be the duty of the Concessionaire in the area of concession to provide, develop, manage and maintain an efficient supply of water and distribute water as described in section 26. Section 27 defines the powers of the concessionaire. This Part further prohibits the damaging of works, the wasting or diverting of water and provides for regulation making powers of the Minister.

Other minor changes happened on 17^th December 1993 where section 22 of the Act was amended by repealing subsection (2) and substituting the following subsection:"(2) The terms and conditions of any agreement or Contract entered into under subsection (1) shall be subject to the provisions of this Part." Section 22, introduced in the principal Act by Act No. 9 of 1993 provides that, notwithstanding anything to the contrary in Parts I and II of the principal Act or in any other Act, but subject to the provisions of Part III, it shall be lawful for the Minister with the approval of the Council of Ministers to enter into an agreement or contract with any legal entity granting that entity the sole concession for the provision, development, management and maintenance of water supply to the public within the area of concession.

Another minor change was made in 2010 where the term “Government” was removed and replaced by the term “State” to suit the changes made in the Interpretation Act.

Limitations in the current law are:

• The issue of having the water supply managed by two departments affects the supply of water to the people of Vanuatu basically with regard to implementations of water services. The Public Works department who is responsible for the urban water supply and the department of Geology, Mines and Water Resources who is responsible for delivering rural water supply.
• The law is silent when it comes to the issues of water tariff and its updating. It fails to clearly refer to a specific authority to be responsible for the updating of water tariff, how the tariff should and must be regulated.
• The law is silent when it comes to the issue of water services tapping especially those of illegal kind.
• The law does not cater for water safety planning which is an important issue in the supply of water in order to have better quality water supply for the people of Vanuatu.
• The law is also silent on the issue of water services maintenance apart from that specified in Part (III) of the Act. It is important to have a provision in the Act to re-inject a portion of the water revenue back to the responsible authority to cater for proper maintenance of water equipment for better water service to the people.
• The law does not recognize water committees in the provincial level and community level to which it should. However, it does give effect to the national water committee.
• The law to some extent agrees and or disagrees with other water related laws.
  

In addressing these issues, the Vanuatu Law Commission undertook consultation of this review on ten islands. These islands are Tanna, Aniwa, Epi, Ambrym, Santo, Loh (Torres), Vanualava, Ambae, Maewo and Efate. Seven communities were visited. This report considers Vanuatu’s obligations internationally, nationally and traditionally and recommendations made are based on findings made in the communities, provinces and with stakeholders in Luganville and Port Vila.

CHAPTER ONE

Water supply managed by two departments

BACKROUND

In Vanuatu, water supply falls under the responsibility and authority of different departments. The Public Works Department supplies water to the provincial headquarters while the Department of Geology, Mines and Water Resources supplies to the rural areas. In the 2 main urban centers, namely Port Vila and Luganville, the water supply is provided for by private companies or concessionaires, as provided for by section 22 of the Act.

While the Act is geared towards a metered water supply, only the two main urban centers have this as their water supply is provided for by private companies or concessionaires who bear the cost of installing and maintaining this water supply. The Public Works Department supplies water to the 4 other provincial headquarters. The rural areas, on the other hand, are not so fortunate to have a metered water supply system as they are under the responsibility of the Department of Geology, Mines and Water Resources, who lacks the finance and capacity to carry out such an extensive work.

This makes the water supply system unreliable for the rural areas as most water supplies in the rural areas are obtained from surface water, rainwater and groundwater and are of some concern particularly in small islands during periods of drought and seasonal rainfall fluctuations. The involvement of two departments, looking after two different areas of water supply, does not help in solving this dilemma as there is often lack of coordination and collaboration and there is a strain put on each department’s budget and financial resources to develop projects to deal with this issue.

In most of the villages, water committees have been set up to help maintain and manage the village water supply. This committee is in charge of collecting the designated fees that each household has to pay and with these fees, they pay for any maintenance that needs to be done to the

water supply. The villages in the outer islands often receive aid from non-government organisations, such as ADRA and the Red Cross, to help them with their water supply needs. However, these organisations only supply the materials but the villages are responsible for its maintenance. In addition, these non-government organisations often go directly to the villages instead of going through the proper departments, which showed that there was a lack of cooperation between the NGOs and the concerned government departments. As a result, there is often a duplication of the same water projects.

In addition, there were also concerns raised about the suitability of a water project with regards to the environmental circumstance of the island and villages as there were some NGO funded water projects that were implemented but which were later discovered unsuitable for the islands. Furthermore, while the water committees are legally recognized, they do not have much power in carrying out their duties. The members of these water committees are often volunteers and are not paid for the work they do. For some small islands, members of the water committees were also members of a different committee and as such, there was not much focus and attention given to water supply and management issues.

By comparison Australia’s Constitution states that natural policy, including that relating to water is the responsibility of its different states. The institutional arrangements for service provision vary among States and Territories. For example, in parts of Queensland and Tasmania, the local government is responsible for the provision of water services whereas New South Wales, Victoria and Southeast Queensland, there are separate municipal retail service providers and state bulk service providers that cover large parts of each state. IN PNG, the Provincial Governments are required to first establish the basic minimum needs for the development of the urban and rural area of their respective provinces relating to a lot of factors, one of which is safe and accessible water. It has also taken a step further by initiating a ‘bottom up’ approach to planning, based on specific needs for each community, where the people are allowed to decide what they want for themselves.^[1]

WHAT PEOPLE SAID

Water Supply to be managed by One Department

• Only one department to look after water as the wide involvement of the different departments, both government and non-government, leads to lack of co-ordination of development projects.
  
• Different departments should also work together to ensure that water supply is available for all areas, both urban and rural. An example would be Public Works Department to liaise with the Department of Geology, Mines and Water Resources in providing machinery for infrastructure.
  

Water delivery system needs a clear structure for the management of water supply services.

• There needs to be a clear structure of management for the water delivery system to improve service delivery for provinces. People in the rural areas felt that they are often left out from receiving any proper services as all the main offices are located in Port Vila and service delivery is often tied up with restrictions. Service delivery in provinces needs to be free of restrictions imposed by Vila.
  
• The living conditions and circumstances of the rural areas differ greatly from that of the urban areas and this should be reflected and provided for in the law.
  
• Provinces should have responsibility for water delivery as different provinces depend on different sources of water. Provincial committees should enforce water laws, which should also include village by laws and policies, and set standards for province, because enforcement is very weak.
  
• Rural water committees are to help to manage local water, underground, springs and groundwater as they are the best local resource.
  
• Rural water committees should report to the recommended Provincial Water Resources Advisory Committee who is then to report to the National Water Resources Advisory Committee.
  
• Any non-government organisation or civil society organization wishing to set up a water project must follow legal procedures before commencing with a project.
  

Partnership is critical

• Best way for Vanuatu is for chiefs, churches, national government and non-government organizations to work together.

RECOMMENDATIONS

THEREFORE, the Vanuatu Law Commission makes the following recommendations:

1. That the water supply is to be looked after by the Ministry of Lands, specifically by one department as the National Water Strategy can only be implemented with one Department and one budget. The most suitable department would be the Department of Geology, Mines and Water Resources.
2. That the phrase ‘Director of Public Works’ to ‘Director of the Department of Geology, Mines and Water Resources’ to cater for the change in the department responsible for the water supply. The department responsible for water should also be changed from “Public Works Department” to “Department of Geology, Mines and Water Resources”.
3. That there should be a definition provided for both ‘rural’ and ‘urban’ areas to distinguish between the different living conditions and circumstances.
4. That there should be a new part inserted in the Act to cater for the different living conditions and circumstances as the provisions provided in the Act generally cater for the urban areas.
5. That there should be a provision that specifically states that the rural water committees in the rural areas are to be responsible for the management of water supply fees, subject to section 36 of the Water Resources Management Act where the Minister has the power to determine and set water fees.
6. That the law should provide and define a proper and clear structure to cater for water delivery and management in the rural areas. The rural water committees are to report to the recommended Provincial Water Resources Advisory Committee, who will report directly to the head office/department and National Water Resources Advisory Committee in Vila.
7. That the rural and provincial committees, with the aid of the police officers, should deal with maintenance and enforcement issues in the rural areas unless public health risks or serious complaints occur.
8. That Non-government organizations and civil society organizations are to follow legal procedures before commencing and establishing a water project.
9. That Non-government organizations, civil society organizations, government departments such as the Department of Geology, Mines and Water Resources, Public Works Department, Ministry of Health, the Environment Department and the Department of Lands should cooperate and work together to address the water issues.
10. 
    

CHAPTER TWO

Updating of water tariff & incorporating a provision to re-inject water tariff

BACKGROUND

An old water tank-Aniwa Island

In Vanuatu, the Water Supply Act provides for the procedures in getting connection to the water supply and the costs and liabilities associated with these procedures. The supply of water is regulated through the charging of water by meter readings. Section 12 of the Water Supply Act states that meter readings can only be taken by a person authorized in writing by the Director of Public Works.

Since the water supply system is under the management of two departments, the water tariff imposed in the rural and urban areas differ. In the past in Port Vila and Luganville, the two concessionaire companies set the water tariff. However, in 2006, the Vanuatu Government took the formal decision to establish an independent Utilities Regulatory Agency (URA) to act as a regulator for water and electricity services in Vanuatu. The URA was established to ensure the provision of safe, reliable and affordable regulated services including water supply, and to maximize access to these services throughout Vanuatu. The URA does this by determining the maximum and minimum price of any regulated services in any place as is provided for under the Utilities Regulatory Authority Act 2007. However, the Act does not cater for re-injecting a portion of the water tariff/revenue for maintenance and improvement of the regulated services. The current Water Supply Act and the Water Resource Management Act also does not provide for a portion of the water tariff to be re-injected back to the responsible department to assist with new water extension and maintenance of the existing water supply system.

Under its regulatory work program, the URA monitors the rights and obligations of the parties’ set out in the Concession Agreements for supplying electricity and water throughout Vanuatu. The Concession Contract provides for setting aside a share of the tariff revenue investments for new assets, in particular grid extensions and new connection. These funds are made available to the concessionaire upon submission of investment proposals to the government.

In March 2009, the URA announced the start of the first tariff review for electricity and water tariffs in Vanuatu. Since then a review of service costs and service quality has been conducted with the help of international consultants, a standard methodology for tariff reviews has been agreed with the provider UNELCO and a financial model has been established. A recent review of the water prices in Luganville was conducted in 2012 by the Utilities Regulatory Authority and after an extensive research and consultation, a new tariff was proposed. However there are certain conditions that have to be complied with and the new tariff will only come into effect in 2014.

The water tariff imposed in the provincial headquarters is set by the Water Supply Act and is the responsibility of the Public Works Department. However in the rural areas, with no proper meter system, the villages are often left to decide on their own how to manage their water supply and the fee that needs to be paid. While it is the URA’s responsibility to set the water tariffs, the office has just been established and due to lack of financing and human resources, its services are limited to the urban areas. Furthermore, there is no regulated water supply service in the rural areas, thus making it more difficult for the URA to carry out its task. When a non-government agency comes and gives aid to the villages in the form of water tanks or water pipes, they often inform them that while they are there to help, they will not be responsible for the maintenance. The fee for water maintenance differs in all the villages and can range from 100vt per household per month to 500vt per household for the whole year. These fees are collected by water committees that have been set up to look after the village’s water supply.

WHAT PEOPLE SAID

Water Fees/Tariff

• There was wide support that the Water Supply Act should provide for a portion of the water revenue to be set aside for maintenance of water pipes, valves and other apparatus for supplying water.
  

Water Committee Fees to set water fees in the rural areas

• There was also general support from the communities and villages that the water laws of Vanuatu must recognise and give effect to village by-laws and policies for the water committees to set water fees to reflect the economic circumstances of the area.
  
• The water fees set by water committees should be recognised under the law and made binding to all users.

Re-injecting Portion of water tariff/fees for maintenance of water supply’s apparatus

• The water committee is responsible to manage water fees paid by all water users. The Committee should also set aside a portion of the water fees for maintenance and repair of pipes, valves and extensions.
  
• Water fees collected for maintenance by village water committees must be paid for by all users. Repairs paid out of fees but extra penalty if owner causes leaks or damage to pipes

URA should be given sole responsibility of updating water tariff.

• Water tariff, in the urban areas, is to be left to URA, who will work closely with the Department of Geology, Mines and Water Resources.
  

RECOMMENDATIONS

THEREFORE, the Vanuatu Law Commission makes the following recommendations:

1. That the Water Supply Act must include specific provisions to recognise the Rural water committees and give effect to village by-laws and rural water rules and policies.
2. That the Water Supply Act must provide specific provision to authorise the water committees to set water fees and manage the revenue towards repair and maintenance on water supply in the rural areas
3. That the Minister may by Orders make regulation to approve and give effect to water fees/tariff set by the Rural Water Committee. This is to be binding on all users.
4. That the calculation and updating of the water tariff in the urban areas should be left to the Utilities Regulatory Authority.
5. That the Water Supply Act must provide cooperation between the NWRAC, Provincial WRAC and rural water committees to set the water tariff in rural areas including the water supply projects funded by the non-government organisations and aid donors.
6. That the Water Supply Act must include general provisions for setting aside a portion of the water revenue purposely for maintenance of water pipes, valves and other apparatus’ for supplying water. These should apply for both urban and rural areas.
   

CHAPTER THREE

Illegal Tapping

BACKGROUND

The existence of any illegal or unauthorized connection to the water main, distribution pipe or any other water connection is considered as Illegal tapping or ‘pilfer water’^[2] .It is considered and declared as unlawful by other water legislations in some of the regional countries. Generally it is viewed as wrongfully taking water without the proper authorisation, license or following the correct lawful procedure from the water utility concerned.

Illegal tapping also has a great impact on the quality of water, the lack of controlling such unlawful activities leads to cross contamination and unsanitary water which causes water to become unsafe to use.^[3] For instance, Illegal tapping by other people causes deterioration in water quality, which puts water quality at risk to end users^[4].

It has now become an ongoing problem for Luganville’s water supply as well as for a few rural water supply systems within Vanuatu^[5]. This has led to high levels of water losses and extra costs for everyone. Currently, in the Water Supply Act and Water Resource Management Act, offences relating to water provided in the Acts do not clearly address illegal tapping or water theft and thus the penalties are not clearly stated.

In the region, the water legislation of Solomon Island and Australia make relevant provisions for illegal tapping or stealing water with its penalties. For instance, in Solomon Island, the Solomon Island Water Authority Act [Cap 130] makes it an offence for a person to wrongfully take or use or divert any available water from which the authority takes its water supply^[6]. The penalty for this offence is a fine of up to ten thousand dollars, or a 5 year imprisonment or both fine and imprisonment^[7].

Vanuatu, unfortunately, does not have any laws concerning illegal tapping as provided by laws of Australia, Solomon Island, Fiji, Tonga and Philippines. Section 30 of Vanuatu’s Water Supply Act only provides that it is an offence to divert any water supplied by the Concessionaire^[8]. However, it is only an offence if the water is supplied by a concessionaire, but most of the water supplies in rural areas are not supplied by concessionaire. Section 36 of the Water Resource Management Act also provides the general offences of using water without approval and interference with any means of water supply^[9]. However, the offences do not cater for illegal tapping.

WHAT PEOPLE SAID

Offences

• There is general support from communities and villages that the water laws of Vanuatu must make illegal tapping or stealing water an offence.
  
• During the consultation, there was general consensus from the people that tampering with water meters should be expressed clearly in the Water Supply Act.
  
• Currently, the general provisions in the Water Supply Act and Water Resource Management Act are insufficient to deal with illegal tapping. The people support that the law must be more specific and in detail to cover all activities and means of taking and using water illegally, such as wrongfully taking water without lawful authorisation or license from the water committee or supplier of the water supply, or not following lawful procedures.
  
• There have been incidents in most of the islands in which villages and communities have been experiencing cutting of water pipes or destroying other connections to supply water to the villages and houses. This must be specifically provided as an offence in the Water Supply Act.

Enforcement and Penalty

• The law of water supply must provide the penalties for illegal tapping and tampering with water meter for individuals and a higher penalty for companies and other commercial enterprises.
  
• The water Supply Act must give power to water committees to enforce village by laws and policies regarding issues of water such as imposing penalty fines on taking water without lawful authorisation and destroying water pipes and other connections.
  
• The water laws must provide cooperation between water committees and law enforcement officers like the police and environmental health officers to enforce water laws and punish any breaches of the law.
  
• Any person who fails to comply with village penalty fines imposed by a water committee will be charged under the Water Supply Act with offences for which the penalty must be an imprisonment sentence or higher fines or both.
  

RECOMMENDATIONS

THEREFORE, the Vanuatu Law Commission makes the following recommendations:

1. That the Water Supply Act must amend and add a new part, to address water offences in the rural areas.
   
2. That the Water Supply Act must include new specific provisions for the offences of illegal tapping, in rural and urban areas.
   
3. That the Water Supply Act must include clear specific provisions for the offence of tampering with water meters.
   
4. That the Water Supply Act must include new specific provisions to cater for the offence of, obstructing, cutting and destruction of water pipes in the rural areas.
   
5. That there should be a higher punishment for companies or other business entities.
   
6. That the Water Supply Act must encourage effective cooperation between the rural water committees, police and other water enforcement officers.
   
7. That the Water Supply Act must recognise and give power to the rural water committees to enforce village fines on any person who commits any water offences under the village by laws and the national water legislation.
   

CHAPTER FOUR

Water Quality

BACKGROUND

Water quality refers to the chemical, physical and biological characteristics of water. It is a measure of the condition of water relative to the requirements of one or more biotic species and or to any human need or purpose.^[10] It is most frequently used by reference to a set of standards against which compliance can be assessed. The most common standards used to assess water quality related to health of ecosystems, safety of human contact and drinking water.

The quality of water, whether used for drinking, domestic purposes, food production or recreational purposes has an important impact on health. Water of poor quality can cause disease outbreaks and it can contribute to background rates of diseases revealing themselves on different time scales.
The importance of safe drinking water for health and development in the Pacific Island Countries has been reflected in many regional action plans and policies. Through the Regional Action Plan on Sustainable Water Management Pacific Island Countries outlined actions that were needed to achieve sustainable water management through collaborative efforts by water sector authorities and inter-sectoral partners.^[11]

The WHO workshop on Drinking Water Quality Standards and Monitoring in Pacific Island Countries developed a Framework for Action on Drinking Water Quality and Health in Pacific Island Countries. It was designed to support the implementation of drinking water quality actions envisioned in the Regional Action Plan.^[12]

In Vanuatu, both ground and surface water resources are utilized for domestic purposes. In urban areas the main water resource is groundwater whereas in rural areas, various sources such as wells, springs, rivers, and rainwater are used. However, in most places other than the main urban settlements, water supply systems are either quite poor or do not exist. The quantity of water is inadequate in many cases, and water sources are subject to contamination^[13].

The water quality monitoring activities were quite poor in the past but are now slowly improving. In the past, there had been no defined quality monitoring system or corresponding responsibility, and no overall review and evaluation of data quality. Quality standards do not exist leaving no basis for evaluation of the analytical results. No surveillance authority has been appointed.

Vanuatu has put together a National Water Quality Standard (NWQS) for Vanuatu which is still not operational but in its final draft, aiming to improve water quality used by the people of Vanuatu to an acceptable standard. The document high lights water treatment standards for treated urban drinking water and rural water supply systems, biological, chemical and physical drinking water quality standards for both rural and urban water supply as well as the monitoring performance against the drinking water quality standards.

The Ministry of Health through the Environmental Health Promotion Unit does have an involvement in water supply, monitoring or surveillance sectors. The Water quality in both urban areas of Port Vila and Luganville is generally very good with only calcium hardness to note. The only treatment is chlorination. The rural water supply coverage could begin to shift towards quality.

Standardizing Test methods

Water quality monitoring and testing is a crucial element in the process of improving water quality. To ensure that results are representative of water quality, and can be compared across different urban and rural water supply systems, and compared over time, recognized standard test methods should be used when analyzing drinking water quality samples.

The draft NWQS for Vanuatu caters for water testing both in the rural and urban areas. The draft document recognizes the standard test methods described in the current edition of the American Public Health Association (APHA) publication ‘standard methods for the examination of water and wastewater’, if test is going to be undertaken in the laboratory.

If portable testing kits are being used for testing drinking water quality in the field, or are being used to test samples in the laboratory, the kits should be sourced from reputable suppliers, and the test kit must have a detection limit that is equal to or less than the water quality standard that result in being compared with.

Currently, Vanuatu was said to have six existing laboratories for testing of water. The labs were said to be situated in Port Vila and Luganville: UNELCO, Ministry Of Health, Vila Central Hospital, Department of Geology and Mines and Department of Public Works in Port Vila and Northern District Hospital in Luganville. These labs were noted to be not fully operational.

Rural drinking water monitoring for the existing water supplies like bores and rainwater tanks are tested by the departmental (Dept of Geology and Mines) labs. However, this is done only following the review of health statistics data. The lab performs water quality testing for private sectors upon request but the services are charged. They also collect baseline and carry out assessment of the impact of development of water resources. The microbiologist testing is done in the lab at Port Vila and onsite for the outer islands^[14].

Water testing is still a challenge in Vanuatu and from the consultations, there is a consensus that the testing of water is hardly done in the islands especially in the remote islands of Vanuatu such as islands far down south and those up north. There is absence of regular visits by water authorities in the islands which puts water quality in question to the people in the islands.

The Water Supply Act [Cap 24] and the Water Resource Management Act [Cap 281] of Vanuatu are silent when it comes to the issue of safe quality water and water quality monitoring. Section 37(2)(e) of the Water Resource Management Act of Vanuatu provides the Minister with the power to make regulations to give effect to the establishment of water quality standards, guidelines and criteria, and prescriptions for testing and monitoring. However, there is no current regulation to regulate for this, which will give effect to the implementation of various International water quality standards and regional action plans that Vanuatu has adopted.

With regards to drinking water, only the Public Health Act of Vanuatu ensures that water intended for human consumption must be protected from contamination. The protection of quality of water supply is provided for under the Public Health Act with heavy fines imposed. However, the enforcement measures for the Act are yet to be strengthened and put in place. There are currently no clear drinking water quality guidelines for Vanuatu although the Public Health Act includes provisions for regulation under the Act for standards, quality and adequacy of water for domestic purposes.

In PNG, the Environment (Water Quality Criteria) Regulation 2002 sets WHO standard criteria for pollutants released into fresh water and sea. The public Health (Drinking Water) regulation provides an indication of acceptable drinking water standards, whether from a supplier or from natural resources. In the Solomons, water quality is an issue that may not be easily and effectively dealt with now at the rural areas, but it is one that is of utmost importance in the long term. Water quality analysis in the Solomon Islands is a major problem. However, the Solomon Islands Water Authority Act ensures that the water supplied for consumption in the Solomon Islands meets the prescribed water quality standards.

In New Zealand and Australia where there is a legislative basis, water providers are required to comply with water standards. The Victorian Water Supply (Safety and Reliability) Act 2008 deals with water quality management. It sets out drinking water quality management plans and offences to carry out drinking water service without approved water quality management plan. Victoria has its own water quality criteria and the Victorian Water Supply (safety and reliability) Act sets out notice of noncompliance with water quality criteria.

WHAT PEOPLE SAID

Water quality

• Water is life
  
• People need better access to quality water especially those in the rural areas.
  
• The quality of water for domestic use in Vanuatu needs to be maintained at a better standard.
  
• Poor water quality supplied will affect the health of the people in the communities.
  
• Drinking water should be safe in order to keep people healthy and without sickness.
  
• The water quality in the rural areas is still in question and needs closer monitoring and improvement.
  

Water projects and supply in the rural areas

• A lot of people raised the issue of lack of water supply in the rural areas especially in areas where there are hardly any rivers or streams.
  
• The government with the help of NGOs is working to address the issue but still a lot needs to be done in order for all to have access to safe quality water.
  
• All water projects must first be approved by the community
  
• Water samples must be tested before a project is to commence in the community.
  
• Specific trainings must be provided to villagers for the better management of any water projects.

Water testing

• The testing of water must be a requirement through-out Vanuatu.
  
• There must be regular testing of water on every island every 3 or 4 months or 2 or 3 times a year.
  
• A lot of people in the rural areas felt that water testing is only done in Vila and Santo and not extended to the rural communities.
  
• Water testing should not be carried out only on islands where there is volcanic activity.
  
• Water test results must be made known to the communities.
  

Water quality monitoring

• Water quality monitoring is an essential part to water quality.
  
• Regular water quality monitoring is needed throughout Vanuatu.
  
• The water supply officers should be equipped with appropriate trainings with regard to water testing and water quality monitoring.
  

RECOMMENDATIONS

THEREFORE, the Vanuatu Law Commission makes the following recommendations:

1. That a new section 12 be inserted into the Water Supply Act to cater for the quality of water used by the people of Vanuatu.
   
2. That the draft Vanuatu’s National Water Standards should be legally recognized and should be a guiding document to water quality in Vanuatu.
   
3. That water quality in Vanuatu for human consumption must be maintained according to both national and international water quality standards.
   
4. That there must be regular monitoring of water quality by responsible Authorities in both rural and urban areas of Vanuatu.
   
5. That a new section 13 be inserted into the Water Supply Act to deal with standardizing water testing in Vanuatu.
   
6. That the law should require water testing at least twice a year for all water sources used by the people including rain water tanks.
   
7. That a new section 14 be inserted to deal with the enforcement provisions relating to water testing.
   

CHAPTER FIVE

Water Safety Planning

BACKGROUND
A water safety plan is a plan to ensure the safety of drinking water through the use of comprehensive risk assessment and risk management approach that encompasses all steps in water supply from the water catchment to consumer.

The plan helps to determine whether the water supply chain can deliver water of a sufficient quantity, monitors the measure in the supply of chain in securing water safety as well as managing the plans describing the actions to be undertaken with regard to water use.

Water safety plans (WSP) are considered by the World Health Organization (WHO) as the most effective means of maintaining a safe supply of drinking water to the public. It is to ensure that water is safe for human consumption and that it meets regulatory water standards relating to human health. This approach was introduced to Pacific island countries (PICs) in a February 2005 workshop in Nadi, Fiji.

A framework for Action on Drinking Water Quality and Health in the Pacific was completed and endorsed in the meeting of Pacific Island Health Ministers in Samoa. This has led to three Pacific–wide water quality programs being proposed and funded, with Vanuatu being selected as one of the four Pacific Island countries to benefit from this.

Access to safe drinking water is a basic need and is one of the most important contributors to public health and to the economic health of communities. The main aim of a drinking water safety plan is to ensure that water supplied to consumers is consistently safe to drink and to manage potential risks from catchment to consumer. However, it takes time to promote understanding and acceptability of the drinking water safety plans concept which is fairly new to the Pacific.^[15]

In Vanuatu, the only two areas where Water Safety Plans are drawn up were Port Vila and Luganville. Draft water safety plans were drawn up for Port Vila and the Mele-Rural supply and there was also a draft National Implementation Plan. In 2007, Luganville and Mele conducted its first ever Water Safety Plan review and this resulted in a Water Safety Plan being finalized and the compilation of an improvement schedule. Water safety plans for the outer islands of Vanuatu are yet to be done.

In Australia, some legislation provides for water standards and miss-use of such standards amounts to penalties being imposed. Other legislations cater for planning. The Water Supply (Safety and Reliability) Act 2008 of Queensland ensures planning for a recycled water management plan.

The Utilities Regulatory Act of Vanuatu under Part 3 Division 2, provides for safety standards, orders, inspection and reliability standards as a part of addressing water safety planning. It allows the authority to issue safety standards in relation to the safety of a regulated service in any place. It also provides for a safety inspector to enter any premises and take samples of any substance for the purposes of testing. The authority may also issue reliability standards in relation to the reliability of a regulated service in any place.

The Water Resource Management Act of Vanuatu gives the Director power to establish standards for water supply equipment and schemes as well as gives the Director power to establish standards for drinking water for the people of Vanuatu. There is no provision in the Water Supply Act to provide for any safety or reliability standards with regards to water or for water safety planning.

WHAT PEOPLE SAID

Proper planning for rural areas

• Water safety plan is an important tool to improve water quality for the people of Vanuatu especially a proper plan for the rural areas.
  
• In some rural areas drought lasts for 3 or 4 months, thus planning should cater for such situations.
  
• There are not enough facilities for water in the rural areas especially areas with no rivers or streams to accommodate the fast growing population.
• There is a problem when tanks or under-ground wells go dry unless villages have access to other sources.
  
• There is only one rural water supply person in each province, thus communities in the rural areas have to plan themselves.
  
• Some villages have access to a lake or river but others need more tanks and springs.
  

Health and water planning

• Hygiene and sanitation and water planning should be done together.
  
• Water planning involves health.
  

Water projects and trainings

• Water projects must be approved by the communities because they know what’s needed.
  
• Water projects must not happen without the communities’ agreement even if the government or Non-Government Organization is paying.
  
• Communities must be involved in water projects so they are trained to maintain, repair or properly manage the water projects.
• Community control of water projects must be legal, instead of churches or NGO control.
  
• Donor projects through the church often don’t work if communities are not consulted.
  
• Trainings should be provided to villagers
  

Visits

• Provincial rural water supply officer to visit communities to check the need for water.
  
• Regular visits from provincial rural water supply officers out to the communities.
  

RECOMMENDATIONS

THEREFORE, the Vanuatu Law Commission makes the following recommendations:

1. That a new section 11 be inserted into the Water Supply Act to cater for water safety planning in Vanuatu.
   
2. That there must be strong enforcement of water planning in Vanuatu.
   
3. That water safety plan for Vanuatu should include both urban and rural areas.
   
4. That the Ministry of Health (MOH) must be consulted as health issues are part of water planning.
   

CHAPTER SIX

Other Laws & Issues

BACKGROUND

During the consultation, it became apparent that there are other laws that also deal with water and the water supply services in the country. These other legislations include laws covering health and the management of water resource and water tariff needs to be consistent with the Water Supply Act or work alongside the Water Supply Act in order to have clear related concerns and responsibilities of various Departments and Ministries including areas of comparative advantage and for better implementation of the legislations.

The Utilities Regulatory Authority Act of Vanuatu stands as a regulatory legislation for both electricity and water. It proposes establishment of National Utilities Regulatory Authority (NURA) to facilitate private sector involvement in utilities (water and electricity) supply. It includes setting service standards, tariff regulation, complaints and resolution procedures. With regards to water tariff, the URA determines the maximum and minimum price of any regulated services in any place as is provided for under the Utilities Regulatory Authority Act 2007. While it is the URA’s responsibility to set the water tariffs, the office has just been established and due to lack of resources, its services are limited to the urban areas. There is no regulated water supply service in the rural areas, thus making it more difficult for the URA to carry out its task. Having said so, the water supply fees and charges if provided for under the Water Supply Act, must agree with the provisions of the URA Act.

Similarly the Public Health Act regulates public health impacts. In doing so, it does give light to water quality monitoring and sanitation promotion. There is an issue with water quality testing in Vanuatu. Water testing is now done by the Ministry of Health (MOH) together with the department of Geology, Mines and Water Resources. There is a need to harmonize the approach to water quality testing between the two Departments or Ministries.

It is further recommended in this report that rural water committees should be established. There is also supposed to be a water advisory committee from each province to be represented in the national water advisory committee. Thus, there should be a clear provision to set out the roles and responsibilities of all water committees and roles and responsibilities between the National Water Resource Advisory Committee (NWRAC) and National Utilities Regulatory Authority (NURA) in order to avoid the possibility of overlapping of work.

WHAT PEOPLE SAID

Other legislation dealing with water and water services

• There are laws currently dealing with water that do not agree with or work alongside each other which makes it harder to effectively implement the provisions of the legislations.
  
• The laws regarding water needs to be well worked through to avoid overlapping of task or provisions in the legislations, repeated provisions and others.

Enforcement and penalties in other laws

• There is currently no effort of enforcing the laws of the country when it comes to the issue of water. There should be stronger enforcement rather than having all the water polluted and damaged.
  
• There are not enough people who enforce these laws.
  

RECOMMENDATION

THEREFORE, the Vanuatu Law Commission recommends the following:

1. THAT the provisions of Water fees in the rural areas set by the new Water Supply Act must agree with the provisions of both the URA Act and the Water Resource management Act.
   
2. THAT the Provincial and Rural water committees be set up and recognized by the law.
   
3. THAT there is a need to harmonize approaches to water quality testing between the Ministry of Health (MOH) and the Department of Geology, Mines and Natural Resources.
   
4. THAT there should be a clear provision to set out the roles and responsibilities between the National Water Resource Advisory Committee (NWRAC) and National Utilities Regulatory Authority (NURA) in order to avoid the possibility of overlapping of work.
   

CONCLUSION

This review was done to assist the work of the department responsible for water and other responsible authorities that work with the Water Supply Act. It is clear that the Water Supply Act needs to be significantly revised.

Beyond the fact that the current Water Supply Act is significantly out of date, the Vanuatu Law Commission’s review of this Act, along with the Water Resource Management Act identified significant support for changing the Act to address the issues that are missing and that are in need to be addressed in the new Act. Issues such as water managed by two departments, the issue of water tariffs and or fees in both rural and urban areas, re-injection of water revenue particularly for maintenance purposes, the issue of illegal tapping, water quality as well as that of water safety planning. It became clear through the review that the above mentioned areas must be dealt with in the new Water Supply Act in order to acquire acceptable water standards and improvement in the water supplied to the people of Vanuatu.

The Vanuatu Law Commission hopes this review has covered all aspects that need to be addressed. It is the sincere hope of the Law Commission that the recommendations in this review will assist the Department responsible in its efforts to strengthen and improve water supply in both urban and rural areas of Vanuatu. Other laws that connect to the Water Supply Act will also be affected should the current law be amended. These laws have been taken into consideration in the course of this review.

APPENDIX 1: LIST OF CONSULTATION

APPENDIX 2: LIST OF SOURCES

^[1] Australian Government ‘National Water Commission’ http://www.nwc.gov.au/organisation/role (Accessed 13/02/2013)

^[2] National Water Crisis Act of 1995 (Philippines) http://www.lwua.gov.ph/.../RA%208041-%20National%20Water%20Crisis% ( Accessed 4/01/2014)
^[3] Department of Geology, Mine &Water Resources ‘ Vanuatu National Water Strategy 2008-2018’
^[4] Department of Geology, Mine &Water Resources, above n2
^[5] Department of Geology, Mine &Water Resources, above n2
^[6] Solomon Island Water Authority Act [Cap 130] 1996 (Solomon Island)
^[7] See n5 above.
^[8] Water Supply Act 2006 ( Vanuatu)
^[9] Water Resource Management Act 2006 ( Vanuatu)
^[10] WORLD HEALTH ORGANIZATION ‘Water Quality and health strategy (2013-2020) http://www.who.int/watersantationhealth/publications/2013/waterqualitystrategy.pdf?au=1 (Accessed 03/02/14)
^[11] SOPAC ‘Water Safety Plan – Water Supply Description Assessment: Vanuatu’ (2006) http://www.pacificwater.org/userfiles/file/Vanuatu%20-Water%20Supply%20System%20Assessment-new.pdf (Accessed 10/12/13)
^[12] Above, n1
^[13] ‘Surveillance of Drinking Water Quality in the Pacific Islands: Situation Analysis And Needs Assessment Country Report’ (2004) http://www.vanuatu.usp.ac.fj/sol_adobe_documents/usp%20only/vanuatu/kingston.pdf (Accessed 18/12/13)
^[14] Above, n1.
^[15] Water safety conference ‘Lessons learned from implementing drinking water safety plans in the Pacific’ (2010) http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.wsportal.org%2Fuploads%2FIWA%2520Toolboxes%2FWSP%2FEvents%2FWS2010PPT%2FThurs_1000-1020(Room%25201)_Kamal%2520Khatri.ppt&ei=M8awUuP1GYaDlQWjz4DIBw&usg=AFQjCNEci0L8130PNTRExKB-qz0cb2JyJA&sig2=ZEfILBR2VBpyh4mIoppDTg (Accessed 18/12/13)