Annex 3 to the Niger Basin Water Charter (on the Prior Notification of Planned Measires and the Examination of Prior Notification Submissions

Filename: 8961-2013-Annex3-2008-NigerBasinWaterCharter

ANNEX N°3 TO THE NIGER BASIN WATER CHARTER ON THE PRIOR NOTIFICATION OF PLANNED MEA AND THE EXAMINATION OF PRIOR NOTIFICATION SUBMISSIONS

(adopted by the resolution n0.5 of the 33rd ordinary session of the Council of Ministers, held in Niamey, on 16th and 17th December 2014

Resolution No.5: On the adoption of Annex No.3 to the Niger Basin Water Charter on the Notification of Planned Measures in the Niger Basin

The 33rd Ordinary Session of the Council of Ministers of the Niger Basin Authority, held at Palais des Congres of Niamey, Republic of Niger, on 16th and 17th December 2014.

GIVEN:

- Resolution No. l of the Extraordinary Session of the NBA Council of Minister held in Niamey, Republic of Niger, on 26th July 2007, on the adoption and recognition of the Sustainable Development Action Plan (SDAP) as a reference strategic framework for the development of the Niger Basin;

- Decision No. 2 of the 8th Summit of the NBA Heads of State and Government, held at Palais de Congres of Niamey, Republic of Niger, on 30th April 2008, on the adoption of the Niger Basin Water Charter;

- Decision No. 2 of the 9th Summit of the NBA Heads of State and Government held at the State House (Aso Villa) in Abuja, Federal Republic of Nigeria, on 16th September 2010, on the implementation of the Niger Basin Water Charter.

CONSIDERING:

- That the Water Charter came into force on 19th July 2010 ;

- That in compliance with the provisions of its Article 33, the Water Charter provides for annexes relating to technical, administrative and financial issues;

- That Annex No. 1 to the Water Charter on the protection of the environment was adopted by Resolution No. l of the 30th Ordinary Session of the Council of Ministers held in N'Djamena, Republic of Chad, from 30th September to 1st October 2011 ;

- Study report on the notification of planned measures;

- That a 25% threshold of the dry five-year dry return period (QMNA5) at the reference stations, equivalent to a flow of 3.5m3/s at the Malanville station, reviewable after three (3) years of application was retained by the workshop in Ouagadougou from the 1st to 5th July 2014;

ADOPTS:

Annex No.3 to the Water Charter of the Niger Basin on the Notification of planned measures in the Niger Basin;

DECIDES:

The consideration of the threshold of 25% of the monthly dry five-year recurrence rate of five (5) years to reference stations located downstream, equivalent to 3,5m3 Is at the Malanville station, reviewable after three (3) years of application;

INSTRUCTS the Executive Secretary to:

- Organize training for Hydrologists of all member countries as soon as possible for greater ownership of the IT-tool for the instruction of planned measures;

- Ensure, in conjunction with member countries, a wider communication and dissemination of that Annex;

- Report on the execution of the instructions set out above to the 34th Ordinary Session of the Council of Ministers.

Done in Niamey, December 17th, 2014

ANNEX 3 OF THE NIGER BASIN WATER CHARTER ON THE PRIOR NOTIFICATION OF PLANNED MEASURES

PREAMBLE

The Republic of Benin, Burkina Faso, The Republic of Cameroon, The Republic of Cote d'Ivoire, The Republic of Guinea, The Republic of Mali, The Republic of Niger, The Federal Republic of Nigeria and The Republic of Chad,

State-Parties to the present Annex 3 of the Niger Basin Water Charter on the Prior Notification of Planned Measures,

CONSIDERING the Niamey Agreement on navigation and economic cooperation among the Niger Basin countries, signed on 26 October 1963;

CONSIDERING the Agreement on the Niger River Commission and navigation and transport on the Niger River: signed in Niamey on 25 November 1964 and revised in Niamey on 2 February 1968 and 15 June 1973, and in Lagos on 26 January 1979;

CONSIDERING the Convention creating the Niger Basin Authority signed on 21 November 1980 in Faranah and revised on 29 October 1987 in N'Djamena;

CONSIDERING the Paris Declaration regarding the shared Vision of the Niger Basin Authority;

CONSIDERING the Water Charter for the Niger River Basin signed on 30 April 2008 in Niamey;

CONSIDERING Decision n°1 of the 9th Summit of Heads of State and Government held on 14 September 2010 in Abuja concerning the transfer of asset management and ownership responsibilities to the Niger Basin Authority;

CONSIDERING Resolution n° I of the 30th ordinary meeting of the Council of Ministers, held on 30 September and I October 201 I in Ndjamena regarding the adoption of Annex n°1 to the Niger Basin Water Charter on the protection of the environment;

Bearing in mind the numerous measures planned in the river basin by the member States in various economic and social development sectors, in particular those included in the Action Plan for the Sustainable Development of the Niger River Basin and in the Niger Basin Authority Investment Programme;

Concerned that the implementation of planned measures by a given State when such measures are likely to cause significant harm to other Member States in the Niger River basin might represent a source of conflict and risk of conflict;

Convinced that the prior notification of planned measures is crucial to prevent conflict arising from the use and protection of the basin's shared water resources;

Intent on enabling cooperation, coordination, negotiation and dialogue between the States in the design, introduction and implementation of planned measures causing transboundary impacts m accordance with the principles oflntegrated Water Resource Management and the Shared Vision;

Have agreed to adopt the present Annex to the Niger Basin Water Charter on the prior notification of planned measures, here above referred to as Annex 3 on the prior notification of planned measures in the Niger River Basin.

CHAPTER I. GENERAL PROVISIONS

Article 1. Meaning of terms

The terms listed below and used in this Annex have the following meaning:

Charter: Water Charter for the Niger River Basin

Council of Ministers: Council of Ministers of the Niger Basin Authority;

Declaration of planned measures: an official instrument submitted by a Member State, via the Executive Secretariat, informing the other States that planned measures, which are not subject to prior notification procedure, are to be implemented.

Executive Secretariat: the Executive Secretariat of the Niger Basin Authority;

Intended planned measures submission: all the technical and legal documents supporting and accompanying notice of intended planned measures;

Member State: a State that is a member of the Niger Basin Authority;

National Focal Points: entities in charge of coordinating the Basin Authority's activities for each Member State by involving all the stakeholders and with the other Member States.
Niger Basin Observatory: an entity that is part of the Niger Basin Authority. It is in charge of monitoring the basin's hydrological, environmental and socio-economic evolution and producing regular information about development in the basin;

Notice of intended planned measures (or notice of intent): an official instrument drawn up by a Member State informing the Executive Secretariat about measures, which if scheduled for implementation, would be subject to prior notification or declaration procedure;

(Prior) Notification issuing State: the Niger Basin Authority Member State submitting prior notification to the Executive Secretariat before implementing planned measures.

(Prior) Notification recipient State: the Niger Basin Authority Member State receiving, via the Executive Secretariat, prior notification before the implementation of planned measures by another Member State;

Panel of experts: the entity in charge of issuing specific technical opinions on matters related to the development of large-scale water infrastructure in the Niger River basin;

Permanent Technical Committee: Permanent Technical Committee of the Niger Basin Authority

Planned measures causing significant harm: planned measures as specified in Technical Document N° I relating to the nomenclature of planned measures subject to prior notification or declaration;

Planned measures declaration submission: all the technical and legal documents supporting and accompanying the declaration of planned measures form;

Planned measures prior notification submission: all the technical and legal documents supporting and accompanying the prior notification of planned measures form;

Planned measures: any project or activity contemplated by a Niger Basin Authority Member State likely to cause adverse effects on the other Member States, whether significant or not, resulting in particular in the modification of stream flows, the pollution of water or detrimental changes to the biological characteristics of the fauna or flora in the Niger River basin;

Prior notification of planned measures: an official instrument by which a Member State informs the other States, via the Executive Secretariat of the Niger Basin Authority, that it wishes to undertake planned measures likely to cause significant harm to other countries in the basin in order to obtain their consent;

Regional Advisory Unit: Group of persons with proven experience of consultation, coordination, negotiation and mediation relating to the design, implementation and operation of large-scale infrastructure and darns in particular, mandated to secure a consensus regarding the management of large-scale water infrastructure;

Sub-basin Committee: entity in charge of proposing modalities for the use of water resources in a hydrographic sub-basin, participating to the resolution of all issues related to water use and cooperating for the planning and implementation of all projects and programmes concerning their hydrographic sub-basin of the Niger River;

Summit of Heads of State and Government: the Summit of Heads of State and Government of the Niger Basin Authority Member States;

Transboundary impact: all significant effects such as the modification of the characteristics of transboundary waters due to human activities;

Article 2. Purpose

This Annex determines how the prior notification, notice and declaration of measures planned in the Niger River Basin are to take place.

It has been adopted by application of articles 20 to 24 of the Niger Basin Water Charter

Article 3: Specific goals

This Annex specifically aims to determine:

- the sphere of application of prior notification, notice of intent and declaration of planned measures;

- the supporting data and information to be provided upon submission of notification, notice of intent and declaration;

- the procedure for the internal examination of prior notification submissions by the Niger Basin Authority;

- the content of the decision pronounced and the type of decision made m response to such notification;

- the procedures for emergency implementation of planned measures;

- responsibility for publishing the decisions rendered in response to such notification and for monitoring the implementation of the planned measures.

Article 4. Sphere of application

The present Annex is applicable to all planned measures likely to give rise to transboundary adverse effects, whether significant or not, on the hydrosystems in the Niger River basin.

Article 5. General principles

Prior notification, notice of intent and declarations of planned measures in the Niger Basin shall be accomplished to secure compliance with the fundamental principles listed below:

- the principle of cooperation, by which the Member States agree to engage in permanent consultation and negotiation in order to ensure prior notification of planned measures in the basin;

- the principle of responsibility, by which the Member States commit to employ good faith in fulfilling all their obligations resulting from the present Annex;

- the principle of transparency, by which the initiatives taken by the Member States must be based on the free circulation of adequate information among Member States, this being the sine proper understanding and follow-up of the implementation of planning measures in the basin.

CHAPTER II. GENERAL RULES APPLICABLE TO THE NOTIFICATION, DECLARATION AND NOTICE OF INTENT OF PLANNED MEASURES

Article 6. Obligation to issue prior notification

Any Niger Basin Authority Member State contemplating the implementation in its own jurisdiction of planned measures likely to cause significant adverse effects on the Niger River basin hydrosystems or on the other basin countries, shall duly notify the other States of their intentions via the Executive Secretariat.

Technical Document N°1 relating to the nomenclature of planned measures subject to prior notification or declaration, attached to the present Annex and forming an integral part of it, determines which planned measures likely to cause significant harm are subject to official notification and declaration.

Article 7. Planned measures subject to declaration

Any Niger Basin Authority Member State contemplating the implementation of planned measures in the basin not subject to prior notification pursuant to article 6 hereabove, shall officially declare such measures in advance to the Executive Secretariat by submission of a declaration if the said measures are likely to cause proven transboundary impacts on hydrosystems that are considered not to be significant.

The Niger Basin Authority's line ministry shall forward declarations of planned measures on an annual basis to the Executive Secretariat, which shall acknowledge receipt.

Article 8. Notice of intent

Notwithstanding the provisions of articles 6 and 7, any Member State contemplating planned measures is encouraged to inform the other States of such intentions to implement, via the Executive Secretariat, as soon as the idea of the project arises and when the technical pre-feasibility studies, such as the preliminary design study, are carried out by sending in notice of intent.

The notice of intent documentation shall describe the characteristics of the project and be accompanied by all data and information available from existing study reports.

The notice of intent documentation is sent annually by any appropriate means to the Executive Secretariat who shall acknowledge receipt.

Article 9. Notification and declaration forms

The notification and declaration forms are contained in the Technical Document No. 3 concerning the information, declaration or notification form which is an integral part of this Annex.

Article 10. Timing for notification, and declaration

Planned measures prior notification submissions shall be remitted to the Executive Secretariat when the environmental and social impact assessment is carried out.

Planned measures prior declaration submissions shall be remitted to the Executive Secretariat when the detailed design studies and the corresponding environmental evaluations are carried out.

Article 11. Composition of notification and declaration submissions

Planned measures prior notification and declaration submissions shall include all the supporting technical information and data available so that the Executive Secretariat and the recipient States are able to assess the effects of the planned measures in the basin.

Among others, notification submissions must include an analysis of the cumulative impacts of the planned measures with existing projects or ongoing planned measures.

Technical Document N°2 relating to the composition of notification and declaration submissions, attached to the present Annex and forming an integral part of it, determines the information to be provided in prior notification and declaration submissions.

Article 12. Remitting notification, notice of intent and declarations

Prior notification declaration and notice of intent of planned measures shall be remitted to the Executive Secretariat by the notification issuing State via via appropriate procedure.

Upon receipt of submissions of notification declaration, or notice of intent, the Executive Secretariat shall acknowledge receipt within no more than ten (10) days of their receipt.

The Executive Secretariat shall forward notice of intent and declaration submissions to the other Member States for information within no more than ten (10) days of their receipt.

Article 13. Imposed timeframe for responding to notification

The prior notification issuing State shall allow at least three months for the Executive Secretariat to study and assess the possible effects of the planned measures in the basin and to respond to the prior notification.

The said timeframe shall be specified in the prior notification submission remitted to the Executive Secretariat.

If the Executive Secretariat so requests, the timeframe may be extended by one month, in particular if additional information is requested from the prior notification issuing State.

CHAPTER III. EXAMINATION OF PRIOR NOTIFICATION SUBMISSIONS

Article 14. Forwarding prior notification submissions to the States and to the Permanent Technical Committee

Within ten (10) days of receipt, the Executive Secretariat shall transfer prior notification submissions to all the Member States for comment and to the Permanent Technical Committee for official examination.

Article 15. Timeframe for responses from the States

The official notification recipient States shall examine prior notification of planned measures submissions and send their comments to the Executive Secretary no more than forty (40) days after the date of forwarding of the notification submission by the Executive Secretary

Failure to respond by a recipient State within the aforementioned timeframe shall be considered as tacit consent to the implementation of the planned measures.

Article 16. Forwarding States observations to the Permanent Technical Committee and examination of submissions

The Executive Secretary shall forward the comments received from the notification recipient States to the Permanent Technical Committee no later than ten (10) days after receipt.

Upon receipt of a notification submission, the Permanent Technical Committee shall request the technical opinions of the Niger Basin Observatory (NBO), the panel of experts and any other accredited entity (National Focal Points; Regional Advisory Unit, Sub-Basin Committees) to assist their examination of the notification submission.

Each entity thus consulted shall remit a report to the Permanent Technical Committee thirty (30) days before the date at which the Permanent Technical Committee is to communicate its justified opinion to the Council of Ministers or to its Chairman in the event of emergency.

The official examination of the notification documentation by the Permanent Technical Committee shall be based on i) the prior notification of planned measures submission remitted by the notification issuing State, ii) the comments returned by the recipient States after their receipt of the prior notification submission and iii) the justified opinions of the supporting bodies.

Article 17. Requests for additional information and data

Throughout the official examination of the notification, the Executive Secretariat may ask the notification issuing State, if appropriate, at the request of a recipient Member State or the Permanent Technical Committee, to provide whatever additional data and information are believed to be necessary to allow better assessment of the predictable adverse effects of the planned measures in the
basin.

The Executive Secretariat must receive such additional information no later than ten (10) days before the expiry of the response period applicable to the recipient Member State.

Article 18. Obligations of the notification issuing State

During the examination of the notification documentation, the notification issuing State shall cooperate in good faith with the Executive Secretariat and the other States to facilitate the examination and assessment of the measures planned in the basin.

The notification issuing State shall remain available for consultation, upon request of the Executive Secretariat, in order to secure a satisfactory solution for all the Parties involved.

During the period reserved for the examination of a notification submission, the notification issuing State shall refrain from implementing or permitting the implementation of the corresponding planned measures.

Article 19. Issuance of the opinion of the Permanent Technical Committee

The Permanent Technical Committee shall, within sixty (60) days of receipt of the prior notification, render a justified opinion regarding the planned measures for the attention of the Council of Ministers.

The Executive Secretariat shall forward the opinion to the Council of Ministers, or in an emergency, to its Chairman.

CHAPTER IV. DECISION REGARDING THE PLANNED MEASURES

Article 20. Decision of the Council of Ministers

The Council of Ministers, or in an emergency, its Chairman, after agreement of the other Members, shall, based on the opinion of the Permanent Technical Committee, render the decision to authorize the implementation of the duly notified planned measures or to postpone it. Such decision shall be rendered no later than twenty (20) days after receipt of the Permanent Technical Committee's opinion.

The decision of the Council of Ministers, or in an emergency, its Chairman, shall be forwarded to the notification issuing State via the Executive Secretary within ten (10) days.

The decisions of the Council of Ministers and its Chairman shall be binding for the Member States. In case the decision of the Council of Ministers is contested, the State(s) will make use of the dispute resolution mechanisms in accordance with Articles 29 to 32 of the Water Charter of the Niger Water Basin.

Article 21. Decision to authorize planned measures
If the Council of Ministers is in favour of the planned measures, the prior notification issuing State shall proceed with their timely implementation, in conformity with the instructions issued in the decision of the Council of Ministers and in full observance of the principles of equitable and reasonable use and of use without harm to natural resources.

Should the decision of the Council of Ministers subject the implementation of the planned measures to certain prerequisite conditions, the notification issuing State shall only proceed with the implementation of the planned measures when such prerequisites have been fulfilled or shall observe them when the project is implemented, whether during construction or operation.

The Executive Secretariat shall note compliance with such conditions and duly inform the Permanent Technical Committee and the Council of Ministers.

In case the decision to authorize the planned measure is disputed, the State or States who feel aggrieved by the decision shall consult with the Niger Basin Authority and shall possibly make use of the conflict regulation mechanisms in accordance with Articles 29 to 32 of the Niger Basin Water Charter.

Article 22. Decision not to authorize planned measures

If the Council of Ministers is not in favour of the implementation of the planned measures, the notification issuing State shall not implement them.

The decision against the planned measures shall be duly justified and state all the conditions of eligibility of the case for further submission and re-examination of prior notification.

In case of dispute of the decision to authorize the planned measure, the State or States who feel aggrieved by the decision shall consult with the Niger Basin Authority and shall possibly make use of the conflict regulation mechanisms in accordance with Articles 29 to 32 of the Niger Basin Water Charter.

CHAPTER V. EMERGENCY IMPLEMENTATION OF PLANNED MEASURES

Article 23. Emergency implementation of planned measures

If the implementation of the planned measures represents an extreme emergency in terms of public health or safety or other similarly important interests, the State planning the measures may proceed with immediate implementation, notwithstanding the obligation of notification described in the present Annex.

Article 24. Modalities for emergency implementation of planned measures
In the event of emergency implementation of planned measures, the State planning the measures shall issue an official declaration of the emergency of the same planned measures as soon as possible after the start of the emergency implementation of the planned measure.

The declaration shall be accompanied by all necessary information and sent to the Executive Secretariat and to all the Niger Basin Authority Member States.

The State planning these measures shall engage in consultations at the request of any of the Member States not convinced of the emergency of the said measures. In the case of dispute over the implementation of a planned measure, the States shall make use of conflict resolution mechanisms in accordance with Articles 29 to 32 of the Niger Basin Water Charter.

CHAPTER VI. PUBLICATION AND FOLLOW-UP OF PRIOR NOTIFICATION RESPONSE DECISIONS

Article 25. Publication of prior notification response decisions

The Executive Secretariat shall make all necessary arrangements to publish decisions in response to the prior notification of planned measures.

Article 26. Monitoring of planned measures

The Executive Secretariat shall verify the implementation of decisions concerning planned measures based on the information provided by the Member States and duly inform the Council of Ministers.

The Niger Basin Authority Member States shall monitor decisions resulting from their prior notification of planned measures and shall send all relevant information to the Executive Secretariat.

CHAPTER VII. FINAL PROVISIONS

Article 27. Amendments

Any Niger Basin Authority Member State may propose amendments to the present Annex.

Such proposals of amendments shall be addressed to the Chairman of the Council of Ministers, who shall forward them to the Niger Basin Authority Member States no later than sixty (60) days after receipt and at least thirty (30) days before the meeting during which the proposed amendment(s) are due to be examined.
Amendments shall come into force under the same conditions as the present Annex.

Article 28. Date of coming into force

The present Annex on the Prior Notification of Planned Measures in the Niger River basin shall come into force upon its adoption by the Council of Ministers.

IN WITNESS WHEREOF, HAVE SIGNED THE PRESENT ANNEX 3 TO THE NIGER BASIN WATER CHARTER ON THE PRIOR NOTIFICATION OF PLANNED MEASURES IN THE NIGER RIVER BASIN

Signed in Niamey, on 16th December, Two Thousand and Thirteen, in English and in French, both texts being equal.

Signatures by:

Republic of Benin,

Burkina Faso,

The Republic of Cote d'Ivoire,

The Republic of Guinea,

The Republic of Mali

The Republic of Niger,

The Federal Republic of Nigeria,

The Republic of Chad

The Republic of Cameroon,