Superiority of new act
Best environmental practices
Integrated environmental management
The long-awaited changes to environmental regulation in Zambia formally became law on April 15 2011 with the repeal of the Environmental Protection and Pollution Control Act, which was replaced by the Environmental Management Act.
The new act shifts the focus from mere protection of the environment to environmental management by all stakeholders. This change in ethos and approach imposes greater obligations on operators in the extractive industries. This update explores some of the key concepts and provisions of the new act.
The scope of the old act was much debated, as it was unclear whether its provisions superseded those of other statutes that touched on environmental regulation and management. The new act makes clear that it supersedes the provisions of other statutes that conflict with its provisions (with the exception of the Constitution). Therefore, environmental provisions in the Petroleum (Exploration and Development) Act and the Mines and Minerals Development Act are now clearly subordinate to those in the new act.
The new act's best practice principles are the first to be introduced under statute in Zambia. Among other things, the act states that the environment is the common heritage of present and future generations. It identifies planning, coordination and management of an integrated policy as the best way of managing the environment. It also provides for the implementation of the precautionary principle, the 'polluter pays' principle and community participation.
Although in reality a mere transformation from the Environmental Council to the Environmental Management Agency, the new incarnation of Zambia's environmental regulator has a wider role under the new act. The generic function of the council under the old act was to conserve the environment and prevent and control pollution; its aim was to provide for the health and welfare of people, animals, plants and the environment. The agency exercises a broader function that extends to ensuring the general sustainable management of natural resources, as well as the protection of the environment and the prevention and control of pollution.
Specifically, the agency's work includes:
- developing and enforcing measures aimed at preventing and controlling pollution;
- developing standards and guidelines for the protection of the environment;
- ensuring the integration of environment concerns into overall national planning;
- collaborating directly with both local and international agencies on environmental issues; and
- facilitating public access to environmental information and projects.
Unlike the council, the agency is not merely an advisory body; for the most part, it is legally autonomous in both policy creation and implementation.
The new act aims to develop a more technically advanced inspectorate with wider powers. Among other things, the inspectorate can:
- order the cessation of any operation or activity that has an adverse effect on the environment or threatens to have such an effect;
- exercise greater express powers of arrest over any person suspected of committing an environmental offence; and
- prosecute offenders under the new act if so empowered by the director of public prosecutions.
The new act also allows the agency to appoint designated inspectors for a period of up to three years (renewable for a further three years). Such appointees are empowered to act as inspectors under the new act, but must do so subject to their terms of appointment under the act.
Integrated environmental management
State of the environment report
The minister responsible for environmental issues is mandated to produce the first state of the environment report within three years of the act's entry into force and every five years thereafter. The report's purpose is to inform the nation of the quality of the environment in Zambia.
Within three years of the act's entry into force, and every 10 years thereafter, a national environmental action plan must be produced, including:
- an assessment of the actions that must be taken in the short, medium and long term, and the urgency of such actions;
- an assessment of the resources at the disposal of the agency and the government to implement the action plan; and
- a strategy and schedule for implementing the action plan.
The minister is required to produce an environmental management strategy within three years of the act's entry into force.
Each of these documents is likely to attract considerable public interest and may also form a basis for public interest actions.
Natural resources management
Acting in liaison with a relevant sectoral regulatory authority, the agency may direct a person responsible for the dereliction or contamination of land to carry out rehabilitation works within such period as the inspectorate may specify. Failure to comply is punishable by a fine not exceeding approximately $11,250 or three years' imprisonment on conviction. The courts have discretion to impose additional penalties.
The agency is mandated to maintain a register of all licences and approvals issued under the new act, as well as an environmental information registry.
Environmental audits and annual reports
An owner of premises or a person undertaking a project must:
- take all reasonable measures to mitigate any adverse impact of the premises or project on the environment that was not initially contemplated in the environmental impact assessment; and
- produce and submit to the agency an annual environmental audit report on such measures.
The agency may also carry out an environmental audit of any activity that is likely to have adverse effect on the environment as it deems fit under the new act.
Furthermore, an owner of premises or a person undertaking a project for which an environmental impact assessment is required must keep accurate records of the post-assessment period and report annually to the agency on the extent to which the premises or project conforms to the assessment.
Prevention and protection orders
The agency is empowered to issue a pre-adverse impact or post-adverse impact order against any person at its discretion, with directions on dealing with the threat or actual impact, including the skilled personnel to be engaged, the equipment to deploy and the precautions to be taken, the costs thereof being borne by the person subject to the order.
Failure to comply with such an order is punishable by a fine not exceeding $3,750 or three years' imprisonment on conviction. The courts have discretion to impose additional penalties. A daily fine of $40 may be imposed for the duration of such non-compliance
Restoration and compliance orders
The agency may issue restoration or compliance orders for the rehabilitation of a contaminated area or compliance with the condition of a licence on such terms and conditions as the agency may specify.
Failure to comply is punishable by a fine not exceeding $11,250 or three years' imprisonment on conviction. The courts have discretion to impose additional penalties. A daily fine of $75 may be imposed for the duration of such non-compliance.
Cost orders, prosecutions and civil actions initiated by the public
If a person fails to fulfil the requirements set out in an order, the agency may fulfil them in its place and issue a costs order for reimbursement. A costs order is enforceable in the manner of a court order, unless the party that is subject to the order applies for review. This must presumably be done before enforcement, although no period is specified for such applications.
A member of the public may present the agency with a written statement of reasons why any of the above orders should be issued against a given person. The agency has 30 days in which to consider the request; if it fails to do so, the member of the public may appeal to the minister.
The public may also write to the director of public prosecutions to request the investigation and possible prosecution of any person deemed to be in breach of the new act. The director of public prosecutions has 30 days from receipt of the request to act on it; otherwise, a member of the public may bring a charge and commence prosecution without the risk of being ordered to pay costs or damages if he or she loses (unless the court determines that the private prosecution was not primarily motivated by public interest in the environment.)
A member of the public may also initiate a civil action against any person that is considered to be in violation of the new act - whether or not the member of the public has suffered damage - and will enjoy similar protection against costs or damages if the action is unsuccessful.
Liability of company directors
Directors of an entity which controls a polluting asset may be liable for environmental damage. The same applies to directors who may be construed as shadow directors of the entity - that is, those who exercise de facto control of it at the time that environmental liability occurs. Such control may be deemed to be exercised through decisions that the director of a shareholding entity makes in relation to a subsidiary that leads to the subsidiary causing environmental harm. Directors' liability may attach irrespective of the liability borne by the entity that owns the polluting asset under the Mines and Minerals Development Act or the Petroleum (Exploration and Development) Act. However, liability in such cases remains personal to the director who makes such decisions and no liability attaches to the shareholder entity in respect thereof. A director's liability may be mitigated if he or she can satisfy the court that:
- he or she had no knowledge of the offence;
- the offence was committed without his or her consent; or
- he or she took reasonable steps to prevent the offence from being committed.
For companies, compliance with the new act will mean additional costs. Companies in the natural resources sector in particular should ensure that they provide for directors' indemnity insurance to cover environmental risks.
For further information on this topic please contact Charles Mkokweza at Corpus Globe Advocates by telephone (+260 1 235 479), fax (+260 211 238 657) or email ([email protected]).