INTRODUCTION TO ENVIRONMENT, ENVIRONMENTAL LAW AND DEVELOPMENT OF
ENVIRONMENTAL LAW
} GENERAL INTRODUCTION
} MEANING OF ENVIRONMENT AND
ENVIRONMENTAL LAW;
vMeaning of the term
‘Environment’’
vThe term has been defined by various authors
and laws in different ways.
§
In
modern concept ’environment’’ means physical sorroundings including air, space,
water, land,plants and life(S. Ball & S. Bell)
} Article 1 of the EAC Protocol on Environment and Natural Resources defines environment to the complex set of physical, geographic,
biological, social, cultural and political conditions that surround an
individual or organism and that ultimately determines its form and nature of
its survival.
Section 3 of Environmental Management Act(EMA),
defines it broadly, it says;
}
“environment” ‘includes the physical factors
of the surroundings of human being including the air, land, water, climate,
sound, light, odour, taste, micro-organisms, the biological factors of animal
and plants, cultural resources and the social economic factors of aesthetic and
includes both the natural and the built environment and the way they interact’.
Ø In summary under that section
environment includes;
Ø
Physical factors of the sorroundings of human being
Ø
Biological factors of animal and plants
Ø
Cultural resources
Ø
Social Economic factors of
aesthetics
Ø
It includes also both natural and built environment and the way they interract.
} Meaning of ‘Environmental
Law’’
vThis phrase is a combination of two words ie;
environment & law
}
In simple words it constitutes enforceable rules and principles regulating the activities
of persons which have impact on
environment.
} Other scholars have also defined the term environmental law in various
ways including;
} Shivji etal 2004,
} Defined environmental law as that
part of the law which provides for the management, conservation
and protection of living and non-living organisms and the atmosphere
that support their continued existence.
} In the environmental management there are varieties of
interlinked issues to be taken into board.
} These include;
} i) measures taken to balance the natural resources by limiting
over-exploitation and
} ii) controlling introduction of
new damaging substances to the environment.
}
Cont…
} The control or management of the environment essentially means the
measures taken to balance the natural resources.
} The measures may be of two kinds:
} I) one aspect may be to ensure balanced utilization so as to prevent
over-exploitation, or
} Ii)to restore those that have been utilized to strenuous levels.
}
Cont…
} Environmental law touches on practically every aspect of society. It
seeks to protect human health, manage natural resources and sustain the
biosphere(the region of surface and atmosphere of the earth occupied by living
organisms). (Wabunoha, R. A (Editor) (2005), Handbook on Environmental Law in
Uganda, Volume II, (2nd Edition), at pg
1)
} The main purpose of environmental law is to regulate human activities
so that land can be used without inflicting adverse(hostile) effects on the
environment and good environmental conditions can be maintained.
}
Rationale behind environmental laws
} Why do we have environmental laws?
} The reasons are two fold;
} i) To provide a regulatory framework for those human activities which
may undermine the vital natural assets that support normal economic and social
life;
} II) To provide for appropriate legal theory to
explain and guide the path of the law in
environmental management
(Calestous
Juma and J.B. Ojwang)
} Environmental law deals with management, use and protection
of environment. It covers a broad range
of activities that affect air, water, land, flora or fauna.
} It includes laws that relate to:
} • Protection of animals and
plants, eg The Wildlife Conservation Act, 2009
} • Planning for the use and
development of land, e.g The Urban Planning Act, 2007
}
• Mining,
exploration and extractive industries, e.g The Mining Act, 2010
}
• Forestry, e.g
The Forest Act, 2002
}
• Pollution, e.g
The Environmental Management Act, 2004
}
• Fisheries, e.g
The Fisheries Act, 2003
}
• Land and
management, e.g The Land Act, 1999 and The Village Land Act, 2009
}
• Agriculture and
farming, e.g The Cereals and Other Produce Act, 2009, The Animal Diseases
Act,2003
}
• Waste
management, eg The Environmental Management Act, 20009
}
• Climate change
and emissions,
}
• Water resource
management (lakes, wetlands, rivers and oceans)
}
• Chemicals and
pesticides, eg The Fertilizers Act, 2009
}
• Weeds and
invasive species
}
• Marine life,
eg. The Marine Parks and Reserve Act,
1994 and the Exclusive Economic Zones Act, 1989.
}
• Conservation of
natural and cultural heritage, The Antiquities Act, 1964 as amended in 1979
}
Functions of environmental laws
Ø Set offences and penalties for
causing harm to the environment which is not authorised, eg water, air and
water pollution.
Ø Assess, control or stop
certain activities (such as land use and development) before they are carried
out
Ø Set standards for how
activities will be controlled
Ø Set standards on how
environmental decisions and approvals will be made
Ø Enable members of the public
to take part in environmental decision-making
Ø Create institutional framework
for environmental management
Ø Create specialist courts and
tribunals (e.g. The Environmental Tribunal under the Environmental Management
Act, 2004) to deal with the matters concerning environment.
} Sources/categories of
environmental law in Tanzania
} Common law
The modern environmental law basically developed from the common law
principles found in the law of torts, administrative law as well as criminal
law
v
Example it
was tort law under which the first attempt was made to control pollution under
nuisance .
}
Where there is unreasonable interference with the use and enjoyment of
another person’s property eg.land amounts to nuisance.
}
Under common law environmental litigation revolves around various
doctrines ie;
v
Nuisance
v
Trespass
v Negligence
v Strict liability
}
Nuisance is created when an owner or occupier of land unreasonably
uses that land in a way that substancially interferes with the rights of
others in the area.
} Cont...
}
Example in the case of Lunda
v. Mathew a cement plant was held
liable for emitting debris dust and fumes that encompassed a landowner’s
house and aggravated his bronchitis and emphysema.(damage of air sucs of
the lungs). Then the owner of the cement plant was held liable.
}
Categories of nuisance
}
Private nuisance
}
Public nuisance
} In the 19th
Century, private nuisance was the most common basis for tortuous action for
industrial pollution. Private nuisance refers to substantially and unreasonably
interference with another person’s right to use and enjoyment of his land. It
is one of the most commonly used actions for addressing environmental concerns
}
The tort of private nuisance arises where there has been an intentional
or negligent act which causes unreasonable and indirect injury to land,
building or vegetation, or a substantial interference with a landholder’s
interest in the use or enjoyment of the land by excessive noise, dust, fumes,
smells and so on.
} An individual’s ability to
obtain redress in private nuisance is tied to a property interest in a specific
parcel of land.
} In relation to environmental
protection, the action for private nuisance seeks to compensate an individual
who has been affected by certain types of environmental harm such as those from
identified sources. Elworthy, S. and Holder, J, Op. Cit, at pg
57
}
In its generality, private nuisance may be described as a mechanism to
for the private control of environmental pollution.
} The person who has been harmed
by pollution could bring an action seeking an injunction, a court order
prohibiting the polluting behaviour and or monetary compensation i.e. monetary
damages for the harm caused.
} In the case of St Helen’s
Smelting Co v Tipping the court provided as follows:
} “In these few sentences I
think everything is included: the Defendants say, “if you do not mind you will
stop the progress of works of this description.” I agree is so, because, no
doubt, in the country of Lancaster above all other countries, and are the means
of developing the national wealth, you must not stand on extreme rights and
allow a person to say, “I will bring an action against you for this and that,
and so on.” Business could not go on if it were so…
} Everything must be looked at
from a reasonable point of view; therefore the law does not regard trifling and
small inconvenience, but only regards sensible inconveniences, which sensibly
diminish the comfort, enjoyment or value of the property which is affected.”
} (1865)11 ER 1483 at pg 1486-7,
See Elworthy, S. and Holder, J, Ibid.
} Generally, as far as nuisance
concerns, the court considers that small inconveniences are tolerable and the
court will not interfere unless it is shown that the inconvenience was one
which is intolerable. An action for nuisance may base the allegations that the
injury claimed is caused by dirt, smoke, fumes, vibrations, noise, vapour, and
smell emanating from the defendant’s action like industrial activity and so on.
}
Public Nuisance
}
Public nuisance is another type of nuisance which is also significant in
protecting the environment against
pollution.
} Public nuisance, unlike private nuisance,
affects significantly large number of people in a society. It occurs when a
person causes a nuisance which “endangers the life, health, property morals or
comfort of the public or obstructs the public in the exercise or enjoyment of
rights common to all members of the community
}
The interference has to be both substantial and unreasonable.
}
Actions in public nuisance may be
brought on behalf of the community by;
}
1. The Attorney-General,
}
2. A person who has suffered damage over and above
that suffered
} 3. The public in general.
} In the case of AG versus
PYA Quarry Ltd (1957) 2 QB 169; 1 All ER
894
} The Attorney General went to court seeking an
injunction against the defendant who was working with the quarries/stone mining
causing a lot of noise, dust and vibrations from the quarry affecting almost
the whole District County Council.
}
private nuisance vs public nuisance
} In AG vs PYA the court had to decide what constitutes an offence of
public nuisance and how it differed from private nuisance.
} 1. any nuisance is public if it materially affects the reasonable
comfort and convenience of life of a class of her majest’s subjects.(Romer LJ)
} 2. Public nuisance affects her majesty’s subjects generally whereas
private nuisance affects particular individuals.(lord denning MR)
}
CONTD…
} In this same case another important question was raised as to when do
the number of individuals become her majesty’s subjects generally? Lord
Dennings said this is a difficult question to answer as everyone will have his
own views.
} Thus he said public nuisance is a nuisance which is so widespread in
its range or so indiscriminate in itself that it would not be reasonable to
expect one person to take proceedings on his own responsibility to stop it but
should be taken on the responsibility of the community at large.
}
Cont…
} Lord Denning stated that:
} “Public nuisance affects Her
Majesty’s subjects generally whereas private nuisance affects only particular
individual…. It is difficult to determine the number of people to be affected;
public nuisance is so widespread in its range and also indiscriminate to expect
one person to take action on its own or to take proceedings.”
} Cont...
}
Trespass
involves an intentional interference with the property interest of an owner or
occupier of land.
}
For the interference to amount to trespass there has to be deliberate
misconduct (interference).
} Trespass occurs where a person
directly, intentionally or negligently and without permission causes some
physical interference with another person’s property. Trespass does not require
proof of damage or harm. An example of trespass in an environmental situation
might be if a person deliberately sprays pesticides or dumps waste on your
property
} The action in trespass
protects against interference with land whether or not damage is caused. In
terms of water pollution the tort of trespass arises where an unauthorised
person brings about the direct entry of polluting matter in to the water of
another person without justification.
} Cont...
}
Negligence, occurs when the defendant
fails to exercise the amount of care
that would be exercised by a reasonably prudent person under the circumstance.
}
It might be acciddental but foreseeable.
}
Cont…
} People only owe a duty of care
to those people who are so closely and directly affected by their activities
that they ought reasonably to have foreseen that their conduct may be likely to
cause damage to that other person.
} Cont...
}
In the case of Donoghoue v. Stevenson,
Lord Artkin in articulating the
neighbouring principle ; he introduced something called ‘duty of care’’
and this has great importance in relation to environmental law.
} Cont...
}
He said; ‘ you must take a
reasonable care to avoid acts or ommissions which you can reasonably foresee
would likely to injure your neighbour’’ ....And who in law is my neighbour?
} Cont...
The answer seems to be persons
who are so closely connected and can directly be affected by your acts(paraphrased).
v
Users of environment have got duty of care towards others who may
reasonably foreseen to be affected by activities done by other users of
environment.
}
Cont…
} Negligence may also be used as
a cause of action to address environmental harm. To plead negligence, the
person bringing the action must be able to prove that:
Ø The defendant owed the
plaintiff a duty of care
Ø The defendant breached this
duty; and
Ø This breach of duty caused
damage to the plaintiff
} Cont...
} Strict liability, to recover under this doctrine, the landowner must
demonstrate that a condition or activity qualifies as abnormally dangerous and
was in fact the cause of the environmental injury.
} Example storing gas in large
amounts, and transmitting high-powered electricity under city streets.
} Rylands v. Fletcher
}
This was the case on strict liability where;
ü
The plaintiff was working in a
coal mines and this mines were
underground mines which were near land
of the plaintiff where the dam was constructed
ü
After the reservoir was finished one of the defendants tunnel bursted
and water escaped underground to the plaintiff’s mines then the mine floaded
} Cont...
ü
The plaintiff sued the defendant and the defendant was held liable on
strict liability principle.
ü
The court stated that; ‘A person who for his own purpose in course of
natural use of land brings on his land
or collects and keeps there anything likely to do mischief if it escapes
must keep that thing at his peril so that when it escapes he will be liable’’
} Cont...
}
A case to read
}
MC Mehta v. Union of India
}
Cont…
} Riparian Rights
} The term riparian refers to
the owner of the land along the river (bank). Riparian rights are common law
rights relating to the use of water associated with the ownership of the bank
of a water course. Riparian owner do not own the water which flows in streams
and water causes but the land owner does have certain rights over it (rights
related to the use of water).
}
Cont…
}
These are regarded as akin
(similar character) to a proprietary right and invasion of them is treated as
damage to land.
} In the case of John Young
& Co v Bankier Distillery Co, (1893) AC 691 at pg 691, (1891 – 4) All ER 439 at 441, HL
}
cont
} the appellant company owned a
distillery situated on the banks of a stream and used water from the stream in
its operations. The respondents owned a mine higher up the stream and used the
water in the working of the mine. The water that the mine owners discharged
back into the stream was pure, but its chemical properties were altered by its
use, making it hard and unsuitable for distilling. :
}
Cont…
}
The House of Lords found that the lower riparian owner, the distillery
company, had right to receive water without alteration of its natural
character.
} Lord Mac Naughten stated that;
}
Cont…
} ‘A riparian proprietor is
entitled to have the water of the stream on the banks of which his property
lies, flow down as it has been accustomed to flow down to his property, subject
to the ordinary use of the flowing water by upper proprietors, and to such
further use, if any, on their part in connection with their property as may be
reasonable under the circumstances….
}
Cont…
} …every riparian owner is thus
entitled to the water of his stream in its natural flow, without sensible
diminution or increase, and without sensible alteration in its character or
quality. Any invasion of this right causing actual damage, or calculated to
found a claim which may ripen into an adverse right, entitles the party injured
to the intervention of the court.”
}
Cont…
} The riparian owner is able to
exercise, as of right, the right available to all members of the public to use
running water since he has an access to the water which non-riparian owners do
not have. The right of use is available equally to all riparian owners and
therefore any one riparian owner must use it reasonably. No one riparian owner
may use the water in such a way as to prejudice the right of other riparian
owners [Embrey v Owen (1851) 155 E.R. 579].
}
Cont…
} The scope of the riparian
owner’s rights extends to access, quantity and quality. Access enables the
riparian owner to navigate, embark and disembark on his land. Quantity enables
the riparian owner to abstract, divert, obstruct or impound the water to the
extent of its natural quantity.
}
Cont…
} He may use the water
abstracted for ordinary (domestic) purposes such as drinking, cooking and
washing, and for these purposes may abstract as much as he needs without
restriction.
}
Cont…
}
. Secondly, he may use it for “extraordinary” purposes such as
irrigation, but in this case must restrict the quantity he abstracts to that
which does not prejudice the rights of other riparian owners.
} Thirdly, a riparian owner may
attempt to abstract water for use outside of his land, but the common law
disallows such “foreign” use of water
}
Cont…
} . On quality, as discussed in
the above case of John Young & Co, the riparian owner is
entitled to have the water in its natural state of purity. Therefore, if any of
these rights are interfered with, the riparian owner has a cause of action.
} National Laws
}
These can be categorised into;
(a) Framework Environmental law
ü
Environmental Management
Act EMA 2004
This is
a principal legislation which regulates environmental
matters as a framework law and if any other legislation conflicts to it on
environmental matters it prevails. (see s.232 of this Act)
} Cont...
(b) Sectoral Environmental Law
These are environmental laws regulating
environmental matters in their specific sectors.
v
Example;
ü
Land Act 1999
ü
Forest Act 2002
ü
Water resources Management Act 2009
} Cont...
(c) Constitution of United Republic of Tanzania
ü Article 14
ü Article 27
} Festo Balegere v. DSM City
Council
}
This case was about disposal of refuse in an area near residential area
and burning wastes which generated smoke, offensive smells thus attracted flies
to the area.
}
The matter was brought to court
by the applicants
} Cont...
}
Held;
The court ruled that it was the
denial of basic right deliberately to expose anybody”s life to danger and it
was eminently mostrous to enlist the assistance of the court in this
infringement.
} Cont...
}
So, here the court found that right to life as per Article 14 of the constitution includes right to clean and
healthy environment.
} This was also illustrated in
the case of Joseph D. Kessy v. DSM City Council where the court
said ;
} Cont...
}
“Article 14 of the constitution of URT 1977 provides that ...
}
...Every person has a right to life and protection of his life by the
society...
} Cont...
}
... It is therefore a contradiction in terms and denial of this basic right
deliberately to expose anybody’s life to danger or what is environmentally
monstrous to enlist the assistance of the court on this infrindgement’’.
}
International environmental laws
}
There have been principles developed under
international environmental law progressively and these have now gained general
support and application in practice. These principles may provide a basis for
cause of action at either the international law or national law.
}
Previously these principles were found in preambles to
treaties and conventions but now they have found their way into the main bodies
of MEAs
} Cont...
}
Note;
}
Preamble is
an introductory statement in a document that explains the documents purpose.
}
Multilateral Environmental Agreements (MEAs) are legally binding agreements btn 3 or more
states relating to Environment.
} Examples of MEAs
}
The 1992 Convention on Biological Diversity
}
African convention on Preservation of Fauna and Flora
}
The European Convention on the Protection of Useful Birds for
Agriculture
}
Philosophical Approaches to Environmental Problems
}
There are two main philosophical ethical approaches in
addressing environmental problems.
}
These are;
}
(I)The Anthropocentricism and
}
(II) Biocentrism.
}
CONT…
} Fundamental distinction must be made between the two approaches.
} Briefly, Anthropocentrism is a human centred environmental ethic which
is based on Theocracy, that is, Religion;
}
On the other
hand, Biocentrism is a life centred ethical approach which contends that every
living thing has intrinsic value by being a member of the community.
}
CONT…
} (1)Anthropocentrism (Human Centred)
} Anthropocentrism is the belief that human beings and human society are,
or should be, the central focus of existence. It is an approach based on
theocracy, that is, religion.
} It contends that human beings
moral duties regarding the natural world, the environment and other creatures
is determined by the duty he/she owes one another as human being
}
Cont,,,
} Consequently, there is no relation between man and the natural world
but through his/her moral duty towards other human beings.
} This is because nature is of no value but very vital in connection of
the well being of the entire mankind.
}
Cont…
} The importance of nature emanates from a number of reasons;
} (a) Nature provides
Biosphere which contains human beings shelter, food, water and oxygen.
} (b) Nature provides other
benefits which are favorable for human beings well fare. Man therefore is
considered to be the central component of the planet.
} This relationship is borrowed from the Holy Bible and the Glorious
Qur’an which calls upon man to subdue nature.
}
Cont…
} For example, the Holy Bible
Genesis 1: 27-28 ordains;
} “…So God created man in his own image…And God said to them: “Be
fruitful and multiply and fill the earth and subdue it; and have domain over
the fish of the sea, and over the birds of the air, and over everything that
moves above the earth…”
}
Cont…
} The material condition for anthropocentric ethics is “respect for
persons”, Man has dominion over the natural world. It is assumed that human
beings are to act on anything as he/she pleases, as long as such liberty is not
injurious to other human beings. And such privilege should be for the purpose
of serving mankind.
}
Cont…
} . For instance, man should not pollute water because pollution is injurious
to his fellow human beings. There is a Latin maxim “Sic Utere Tuo Ut Alienum
Non Laedas” which translates into ‘You may use your property in any manner
whatsoever so long as such usage does not harm others’.
}
Cont…
} This adage is reflected in the Law of Torts where the jurists in the
development of the environmental utilized the biblical adage “Love your
neighbour as you love yourself” to mean: Take care of the present, the future
and the posterity.
}
Cont…
} (ii) Biocentrism (Life
Centered)
} Biocentrism is a life centered environmental ethical approach which
contends that every living organism has inherent intrinsic value by virtue of
being a member of the community.
} Biocentrism is a term that has several meanings but is most commonly
defined as the belief that all forms of life are equally valuable and humanity
is not the Centre of existence.
}
Cont…
} Biocentric positions generally advocate a focus of the well-being of
all life in the consideration of ecological, political, and economic issues.
For example, ants feed on virus and bacteria, a situation which reduces many
diseases. Accordingly, human beings are not above other creatures, but have
been entrusted with duty towards preservation of nature which emanates from his
relationship with other living and non living things
}
Cont…
} Man conserves trees not because they produce oxygen but because trees
are trees. Man should respect nature because it gives him/her some intrinsic
values and benefits.
} The material condition for biocentric ethics is “respect for nature”.
See section 202 of the Environmental Management Act
}
Development of Environmental Law
Ø
Development of International
Environmental Law
} Much of the law to protect the
environment has roots that are deep in history, but the conceptual basis of
environmental law is still developing. (Elworthy, S. and
Holder, J (1997), Environmental Protection: Text and Materials, Butterworths,
London, at pg 3)
} The industrial revolution and the development
in science and technology both contributed to the development of modern
international environmental law.
}
cont…
} The development of International Environmental Law may be discussed on
three phases: the period before 1900s; the period between 1900 and 1970 (i.e
Before Stockholm Conference) and the period from 1970 and beyond (the Modern
Era of International Environmental Law).
}
Cont…
} The Period before 1900s
} Before 1900, there were few
multilateral or bilateral agreements concerning international environmental
issues. Relevant international agreements were based on unrestrained national
sovereignty over natural resources and focused primarily on boundary waters,
navigation, and fishing rights along shared waterways, particularly the Rhine
River and other European waterways. They did not address pollution or other
ecological issues.
}
Cont…
} The period between 1900 and
1970
} In the early 1900s, countries
began to conclude agreements to protect commercially valuable species. These
agreements include the 1902 Convention for the Protection of Birds Useful to
Agriculture, the 1916 Convention for the Protection of Migratory Birds
in the United States and Canada, and the Treaty for the Preservation and
Protection of Fur Seals signed in 1911. Only one convention focused on
wildlife more generally: the 1900 London Convention for the Protection of
Wild Animals, Birds and Fish in Africa.
}
Cont…
}
By the 1930s and 1940s, states recognized the importance of conserving
natural resources and negotiated several agreements to protect fauna and flora
generally. These include the 1933 London Convention on Preservation of Fauna
and Flora in Their Natural State (focused primarily on Africa), and the
1940 Washington Convention on Nature Protection and Wild Life Preservation (focused
on the Western Hemisphere). During this period, states also concluded the well
known the 1946 International Convention for the Regulation of Whaling,
as well as other conventions concerned with ocean fisheries and birds.
}
Cont…
} Generally, in the first half
of the 20th Century there was little development and application of
customary international norms to environmental issues.
} During the 1950s and early
1960s, the international community was concerned with nuclear damage from
civilian use (a by-product of the Atoms for Peace Proposal) and marine
pollution from oil. Thus, countries negotiated agreements governing
international liability for nuclear damage and required measures to prevent oil
pollution at sea.
}
Cont…
} In the 1960s,
environmental issues began to emerge within countries. Conventions were
negotiated relating to interventions in case of oil pollution casualties, to
civil liability for oil pollution damage, and to oil pollution control in the
North Sea. The African Convention on the Conservation of Nature and Natural
Resources was concluded in 1968.
}
Cont…
} 1970 and Beyond (The Modern Era of
International Environmental Law)
} The period from 1970s to date
is also referred to as Morden International Environmental law. It is in this
period when significant developments in international environment law took
place. A number of developments in the 1960s led to public concern that the
rapid increase in industrialisation following the Second World War was
degrading the natural world. The widespread use of pesticides in modern
agriculture was affecting environment on different ways.
}
Cont…
} Acidic rain and water
pollution, among other factors, called attention of the international community
to develop ways to protect the natural world. It became clear that action to
prevent the harms caused by pollution was needed at the international level. In
response to these environmental problems, in 1968, the United Nations General
Assembly passed a resolution which called for an urgent intensified action at
national and international level, to limit, and where possible, to eliminate
the impairment of the human environment GA Res 2398
(XXXIII) of 3 December 1968. See Elworthy, S. and Holder, J, Op. cit. at
pg 133.
}
Cont…
} Following the General Assembly
resolution of 1968, in 1972 the United Nations convened a Conference of Human
Environment (Stockholm Conference) hosted by Sweden in Stockholm, where 113
states participated. It is in this Conference, for the first time, governments
of various countries discussed environment as a global policy issue.
}
Cont…
} At the end of the Conference,
a Declaration (Stockholm Declaration) was adopted. Apart from the Declaration,
an Action Plan which made over a hundred recommendations was adopted. The most
significant outcome of the Stockholm conference was the establishment of the
United Nations Environment Programme (UNEP) in 1973. The task of UNEP is to
identify research needs and stimulating environmental programmes amongst other
agencies of the United Nations and amongst regional groupings of states.
}
cont,…
} UNEP has progressively
developed international law particularly international environmental law by
producing guidelines, conventions and protocols to protect regional seas,
regulate the environments of hazardous wastes and to protect the ozone layer.
} Ibid. at pg 135.
}
Cont…
} In 1983 the United Nations
established the World Commission on Environment and Development (the Brundtland
Commission). The task of the commission was to look at the world’s
environmental problems and propose a global agenda for addressing them. In
1987, the Commission published its report, Our Common Future (the Brundtland
Report). The report came up with the issue of sustainable development which
emphasises on meeting the needs of the present without compromising the ability
of future generation to meet their own needs.
}
Cont…
} The name Brundtland comes from Gro Herlem Brundtland, the head of the
Commission and former Prime Minister of Norway.
} Another important Conference, the 1992 United Nations Conference on
Environment and Development (UNCED) (Rio Conference), was held in Rio de
Janeiro, Brazil.
} The Conference led to the adoption of several important legally binding
environmental treaties. These include the 1992 United Nations Framework
Convention on Climate Change and the 1992 Convention on Biological Diversity.
}
Cont…
} In addition to above mentioned,
the parties adopted a 'soft law' (non-binding agreements) Declaration on
Environment and Development which reaffirmed the Stockholm Declaration and
provided 27 principles guiding environment and development (now referred to as
the Rio Declaration). Another influential soft law document that the parties
adopted was Agenda 21, a guide to implementation of the treaties agreed to at
the Summit and a guide as to the principles of sustainable development.
}
Cont…
}
Agenda 21 also established the United Nations Commission on Sustainable
Development (CSD) and the Global Environment Facility (GEF). Finally, the
non-legal, non-binding Forest Principles were formed at the Earth Summit
} Since 1970, hundreds of
international environmental instruments have been concluded. Including
bilateral and multilateral instruments (binding and nonbinding), there are
close to nine hundred international legal instruments that have one or more
significant provisions addressing the environment.
}
Cont…
} A further meeting was held in
2002, known as the World Summit on Sustainable Development (WSSD), held in
Johannesburg, South Africa. Notable is the absence from its title of the word
'environment'. Although this meeting was held to mark the tenth anniversary of
the Earth Summit, it is considered by many environmentalists and environmental
lawyers to have been less than successful in environmental terms. It attained
only limited progress towards stricter global regulation of human impacts on
the natural environment. Nonetheless the WSSD brought a renewed emphasis on the
synergies between combating poverty and improving the environment
}
Cont…
} Common Law Principles and the
Development of Environmental Law;
}
The term common law refers to the ancient law of England based upon
societal customs which is recognised and enforced by the judgments and decrees
of the courts. It is the body of principles and rules of action, embodied in
case law rather than legislative enactments that derives its authority from the
community customs and traditions that evolved over the centuries as interpreted
by judicial tribunals. http://legal-dictionary.thefreedictionary.com/Common+law,
last retrieved on Wednesday 3, July 2015
}
Cont…
}
Therefore Common law is based on precedent (legal principles developed
in earlier case law) instead of statutory laws.
} There are no specific common
law actions designed to protect the environment, as the common law has
principally developed to protect the individual’s rights and private property
rights. However, when an environmental impact also interferes with an
individual’s right or a private property right, the common law can be used to
protect the environment indirectly. For this reason, generally only a person
whose interests have actually been affected by the harm can bring an action under
the common law.
}
Cont…
}
A breach of the common law is said to give rise to a “cause of action”.
Some common law causes of action that might be used to protect the environment
are: trespass; private nuisance; public nuisance; and negligence. Other common
law principles which may well provide protection to the environment are the
principle of riparian right, and the rule in Rylands v Fletcher
} (details about common law
principles see above)
}
Cont…
} Administrative Law/Judicial
Review
} Judicial Review is a common
law principles developed in 18th and 19th Centuries regarding the
administrative law. Judicial review is a form of court proceeding in which a
judge reviews the lawfulness of a decision or action made by a public body.
}
Cont…
}
In general terms judicial review may be appropriate where:
}
the challenge is based on an allegation that the public body has taken
an unlawful decision or action, eg appeal to a tribunal, and there is no adequate alternative remedy.
}
CONT…
} Judicial review has played a
vital role to the development of the modern environmental law. Judicial review
provides for the specific remedies intended to challenge the exercise of powers
of a public authority where they exercise such powers, relates to
performance/non-performance of a statutory duty that has bearing in
environmental rights, then a person may use the judicial review remedies like
certiorari, mandamus, injunction, declaration, etc.
}
Cont…
} Certiorari-a writ by which a higher court reviews a case tried in a
lower court
} Mandamus-a judicial writ issued as a command to an inferior court or
ordering a person to perform a public or statutory duty.
} Injunction-a judicial order restraining a person from an action, or
compelling a person to carry out a certain act.
}
CONT…
} In the case of the Village
of Wilsonville v SCA Service Inc, the plaintiff filed a complaint for
injunctive reliefs on the ground that the operation of the defendant chemical
waste disposal site presents a public nuisance and a hazard to the health of
the citizens of the village, the country and state. (Supreme Court of Illinois) Case No. 31
UNEP Compendium
}
CONT…
} The trial judge concluded that
the site constituted a nuisance and enjoined the defendants from operating
hazardous chemical waste handful in Wilsonville village. It ordered the
defendants to remove all toxic waste buried there, along with contaminated soil
found at the disposal site as a result of the operation of the landfill; the
court also ordered the defendant to restore and reclaim the site. On these
findings the defendants appealed. Appellate Court unanimously affirmed the
trial court’s judgement.
}
CONT…
} Development of Environmental
Law in Tanzania;
} The political history of
Tanzania is very significant in understanding the development of environmental
law in the country. Before Tanzania attained her independence in 1961,
Tanganyika by then was firstly colonised by the German. In 1919, after Second
World War, it was put under British control as a mandate territory. In 1964
Tanganyika and Zanzibar united and Tanzania was born. Matters which are union
are provided in the Articles of Union.
}
CONT…
} However environmental issues
are non union matters. This, therefore, means that Mainland Tanzania has a
distinct body of laws from that of Zanzibar, providing for environmental
management.
} The Development of
environmental law in Tanzania (Mainland) may be divided in to three phases viz;
pre- colonial era, colonial era and after independence.
}
CONT…
} Pre- Colonial Era
} Before the coming of
colonialism the people of Tanzania had their own ways of protecting the
environment. Generally, environmental protection was achieved through the use
of Indigenous Knowledge System (IKS).
} The term Indigenous Knowledge
is used to describe the knowledge systems developed by the community as opposed
to the scientific knowledge that is generally referred to as modern knowledge.
It can also be defined as a body of knowledge built up by a group of people
through generations of living in close contact with nature .
}
CONT…
} A broader definition is that indigenous
knowledge is the knowledge used by local people to make a living in a
particular environment. (Mwaura, P (Editor) (2008), Indigenous Knowledge in
Disaster Management in Africa, UNEP, Nairobi, Kenya, at pg 21)
}
Cont….
} while there may be similarities
in indigenous knowledge systems, indigenous knowledge is specific to
communities and local environments. For example Indigenous knowledge among the
Makonde of Southern Tanzania who lives by the shores of Indian Ocean can hardly
be the same as that of the Pare people living in the mountainous Northern side
of Tanzania which is characterized by steep slopes and low temperature. (Ibid.)
}
Cont…
} Indigenous resource management
systems reflected the way communities organized their lives within the
constraints of environment in which they lived. Decision-making institutions
focused on utilizing and managing environment resources based on the knowledge
of the community. This was done within the framework of their world, in other
in accordance with their ethics, norms and beliefs
}
Cont…
} . Indigenous knowledge of
environmental management allowed classification of soil and vegetation types,
prediction of resources availability and planning of use strategies. This
knowledge enabled communities to avoid over-utilization over an area through
monitoring its status and adjusting their resource use patterns.
}
Cont…
} The indigenous communities and
farmers in Tanzania as in other parts of Africa have developed intricate
systems of gathering, predicting, interpreting and decision-making in relation
to weather. They were able to use knowledge of weather system such as rainfall,
thunderstorms, windstorms and sunshine to prepare for the future weather.
}
Cont…
} Land management under
indigenous knowledge involved a number of farming technologies that have
repercussions across the whole spectrum of conservation. These included such
practices as slash-and-burn, shifting cultivation, use of grass strips,
intercropping, selective cultivation, and a number of other technologies and
practice that sake to optimize food production under varying environmental
conditions. In addition, many of the communities surveyed combined cultivation
with livestock rearing (mixed farming).
}
Cont…
} It is beyond doubt that
indigenous knowledge was important for the survival of many indigenous
communities and the preservation of biodiversity. Warren notes that indigenous
knowledge provides the basis for grassroots decision-making, much of which
takes place at the community level through indigenous organizations and associations
where problems are identified and solutions to them are determined.
“Solution-seeking behavior is based on indigenous creativity leading to
experimentation and innovations as well as the appraisal of knowledge and
technologies introduced from other societies.”
} Ibid., at pg 30
}
Cont…
} Indigenous knowledge,
particularly agricultural and environmental knowledge, gained international
recognition after the United Nations Conference on Environment and Development
(UNCED) held in June 1992 in Rio de Janeiro. Agenda 21, one of the
environmental agreements signed at UNCED, emphasizes that governments and
intergovernmental organizations should respect, record, and work toward
incorporating indigenous knowledge systems into research and development
programs for the conservation of biodiversity and sustainability of
agricultural and natural resource management systems
}
Cont…
} Other international documents,
such as the 1980 “World Conservation Strategy” by the International Union for
the Conservation of Nature and Natural Resources (IUCN), also paved the way for
the recognition of the important role played by indigenous knowledge in
biodiversity and human development. Ibid., at pg 23
}
Cont…
} As with other forms of
knowledge, indigenous knowledge has its limitations or weakness, and these must
be recognized if its integration with scientific knowledge is going to be
worthwhile. Certain indigenous knowledge practices may also become outdated
because of rapid changes in the environment or the socio-economic and cultural
scene. Not all indigenous knowledge practices are naturally in harmony with the
environment.
}
Cont…
}
There is historical and contemporary evidence that indigenous peoples
have also committed environmental wrongs through over-grazing, over-hunting, or
over-cultivation of the land and it is misleading to think of indigenous
knowledge as always being “good”, “right” or “sustainable”.
}
Ibid., at pg 31
}
Cont…
} 2 Colonial Era
} The colonial government
brought into Tanzania legislation to deal with environment during the colonial
era. This was by way of international agreements and colonial enactments. The
earliest were brought by the Germans but these were not from international
perspective. Most of them dealt with fencing and fines approach to
environmental management.
}
Cont…
} The colonial regimes
introduced also the concept of licences to appropriate exploit the natural
environmental resources. Most customary practices that sought to protect
environment were rendered redundant.
} During the colonial period,
development was driven by political and economic imperatives. The natural
environment was seen as a free good and the preoccupation of the colonial
governments was how to control as much as possible of it for their own economic
benefit.
}
Cont…
} Administrative powers was used
to penetrate the local production systems and either co-opt or remove
indigenous populations.
} The colonial government
progressively alienated land from the indigenous population for European
settlement, and then entrenched European private property rights as a buffer
against the impending African rule. It is argued that the African sector of the
colonial economy was systematically exploited and under-developed in order to
support the settler sector.
} (Calestous Juma and J.B.
Ojwang (Eds) (1996), In Land We Trust: Environment, Private Property and
Constitutional Change, London: Zed Books/Nairobi: Initiatives Publishers at
pg.19)
}
Cont…
} Post-independence
} After independence the
colonial legislations were inherited. However the changes which took place in
international regime from 1970s, also affected environmental regime in
Tanzania. In 1983 the first environmental legislation, the National Environment
Management Act No. 19 of 1983, Cap 191 R.E 2002.
}
Cont…
} The Act established the
National Environment Management Council (NEMC). The functions of NEMC, among
others, were to formulate policy on environmental management and recommend its
implementation by the Government; and to co-ordinate the activities of all
bodies concerned with environmental matters and serve as a channel of
communication between these bodies and the Government.
}
Cont…
} In 1984, the Constitution of
the United Republic of Tanzania was amended to provide for the Bill of Rights.
Although there was no direct provision related to environment, the court have
interpreted some of the provisions contained in the bill of right to achieve
environmental protection. For example the High, in the landmark case of Festo
Balegele and Others v Dar es Salaam City Council (see above)
}
Cont…
} Despite the enactment of the
National Environment Management Act of 1983 and the enactment of other
environmental related legislations, the corpus of environmental legislations
was broad, segmented and sectoral oriented. Responsibility for environmental
protections was shared among different line ministries with no formal
co-ordination between them at both the programme and policy level, save ad hoc
co-ordination arrangements to satisfy specified objectives.
}
Cont…
} In 1997, the government
promulgated The National Environmental Policy. The policy provided a framework
for making fundamental changes that are needed to bring environmental
considerations into the mainstream of decision-making in Tanzania. It also
seeks to provide policy guidelines and plans and gives guidance to the
determination of priority actions, for monitoring and regular review of
policies, plans, and programmes.
}
Cont…
} It further provides for
sectoral and cross-sectoral policy analysis thus exploiting synergies among
sectors and interested groups. In 2004 the government enacted the Environmental
Management Act, No 20 of 2004, a framework legislation which provides a link
for various environmental related legislations and also provides coordination
among various institutions responsible for management of the environmental in
Mainland Tanzania. (Pallangyo, D.M. Op. Cit., at pg 30)
}
Cont…
} As pointed out earlier, the
environmental legal regime of Tanzania is also shaped by what takes place in
international community. Tanzania is a signatory and has ratified various international
and regional agreements which provide for environmental management.
}
Cont…
} These include:
} • Convention on Biological
Diversity ratified on 8 March 1996;
} • Convention for the
Protection, Management and Development of the Marine and Coastal Environment of
the Eastern African Region and Related Protocols ratified on 1 March 1996;
} • United Nations Convention to
Combat Desertification ratified in April 1997;
} • United Nations Framework
Convention on Climate Change ratified in April 1996;
}
cont
} The Vienna Convention on the
Protection of Ozone Layer and Montreal Protocol on Substances that Deplete the
Ozone Layer acceded on 7 April 1993 and 16 April 1993 respectively;
} • Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and their Disposal
acceded on 7 April 1993 and,
} • Bamako Convention on Ban of
the Import into Africa and the Control of Transboundary Movements of Hazardous
Wastes within Africa ratified on 7 April 1993.
} Ibid., at pg 19
}
Cont…
} Generally the main sources of
environmental law in Tanzania are the common law and the statutory law in the
form of principal legislation, subsidiary legislation and international law and
the Constitution.
} The most important common law principles that are relevant to
environment are the torts of negligence, nuisance and the rule in Rylands v
Fletcher (1868) L.R.3 H.L 330. Even where no specific precedent exists in
the Tanzanian context, it is fair to say that these developed environmental
common law rules may very well bind individuals and businesses. This is by the
virtue of the Judicature and Application of Laws Ordinance, Cap. 453.
}
Cont…
} Application of common law
principles in environmental litigation in EA
} Courts in East Africa have
applied common law principles that are grounded/have a basis/foundation in the
law of torts, administrative law (judicial review) and criminal law in cases
related to environmental protection. In some cases courts in E.A have used the
provisions of the Constitutions to decide cases that have a bearing on environmental
law.
}
assignment
}
Negligence
}
Gitiriku Wainaina & Mrs Gitiriku Wainaina v Kenafric Industries
& Manil Industries (Republic of Kenya in the National Environmental Tribunal at Nairobi
Tribunal Referral No Net 08/2006 by the National Environmental Management
Authority)
}
1.3.4.2 Nuisance
}
Sandhu Construction Company v. Peter Shayo (1984) TLR 127 (Tanzania)
}
Festo Balegele and 749 Others v. DSM City Council, Misc. Civil Case No. 90 of 1991, High Court
of Tanzania, Dar es Salaam (Tanzania)
}
Paul K. Nzangu vs. Mbiti Ndili, High Court of Kenya at Machakos, Civil Appeal
No. 8 of 1991 (p. 36 Case 14 UNEP Compendium
}
ASSIGNMENT
}
3 Judicial Review
}
Felix Mavika and another v. DSM City Council, Case on injunction to stop the city from
dumping solid waste
}
Festo Balegele and 749 Others v. DSM City Council, Misc. Civil Case No. 90 of
1991, High Court of Tanzania, Dar es Salaam (Tanzania)
}
1.3.4.4 Riparian Rights
}
Nairobi Golf Hotels (Kenya) Ltd. v Pelican Engineering and Construction
Co. Ltd. (High Court of Kenya, Nairobi,
Case 706/1997)
}
ASSIGNMENT
}
Criminal
}
Stephen Thiongo Karanja v. The Republic (1991) C.A (Kenya)
}
Chapter XVII of the Penal Code, Cap 16 of Laws of Tanzania R.E 2002,
covers Nuisances and offences against health which, inter alia, are:-
}
Common Nuisance
}
Fowling of water
}
Section 184 provides for the crime of fowling water:
}
Section 185 provides for the crime of fowling air:
}
Section 186 provides for the crime of offensive trades
} TOPIC TWO
} OVERVIEW OF INTERNATIONAL
ENVIRONMENTAL LAW
}
OVERVIEW OF INTERNATIONAL ENVIRONMENTAL LAW
} Public International Law
} International law, on one
hand, concerns agreements among different nations and on another hand concerns
agreements between citizens or corporations of different nations. Agreements or
treaties among different nations are generally referred to as public
international law. Contracts between private parties (corporations or citizens)
residing in different nations are generally referred to as private
international law. Because the field of international environmental law focuses
on the relations and agreements among nations, it is part of public
international law.
}
Cont….
} Sources of International
Environmental Law
} There is no supreme
international body responsible for law making, so international law is derived
from a number of sources and a diversity of institutions. Sources of
international law as specified under Article 38(1) Statute of International
Court of Justice are the main sources of international environmental law too
}
Cont…
} Treaties
} Treaties, they are also known
as conventions, accords, agreements and protocols as defined by the 1969 Vienna
Convention on the Law of Treaties. They are agreements made between states with
the intention that they should be binding under international law. They may be
multi-lateral or bi-lateral. Treaty making involves two stages viz; a treaty is
signed by states with a later ratification date. Binding Environmental treaties
play a crucial role in establishing the law.
}
Cont…
} International Custom or
Customary International Law
} International Custom consists
of two elements: state practice and opinion juris (belief that the
behaviour is required by law). Article 38 of the statute of the
International Court of Justice provides that the Court should apply
international customary law as evidence of a general practice accepted as
law. This evidence can be found in the actual behaviour of the
states coupled with the belief that the behaviour is required by
law – opinion juris.
} Elworthy, S. and Holder, J, Op. Cit, at pg 131
}
Cont…
} State practice can be evidence
in several sources, including: ratification of treaties; participation in
treaty negotiations and other international meetings; national legislation; the
judgments of national courts; votes and other acts in the UN General Assembly;
Acts in other International Organizations, statements by ministers and
diplomats; state pleadings and; level of tolerance are some from a wide range
of items. The state practice to contribute to the development of international
law it has to be general that means a widespread and representative
participation even without a considerable period of time.
}
Cont…
} Opinio juris requires evidence
that a state has acted in a particular way because it believes it was required
by the law. It consists of expression of beliefs regarding acts of varies
international organizations; statements made by representatives of the states
and procedure in ratifying the treaties. The view of Sir Hersch Lauterpacht
‘regarding all uniform conduct of governments as evidencing the opinion juris
except when it is shown that the conduct in question was not accompanied by any
such intention.’
}
Cont…
} An example of customary
international environmental law is the duty of the state to take adequate steps
in order to prevent, reduce and control sources of pollution within its
jurisdiction which cause harm in the territory of another state. See the Trail
Smelter case. In this case Canada was ordered to pay damages to the US and
to establish a regime for controlling future emissions from a smelter whose
fumes had caused harm across the border.
} United States of America v
Canada, (1939) 33 American Journal of
International Law at p.182
}
Cont…
} In the case of Nicaragua
the Court of Justice, clearly provided that treaty reservation could not
displace customary international law. The Court stated that:
} “The Court has now to turn its
attention to the question of the law applicable to the present dispute. In
formulating its view on the significance of the United States multilateral
treaty reservation, the Court has reached the conclusion that it must refrain
from applying the multilateral treaties invoked by Nicaragua in support of its
claims.”
} Case Concerning Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v United States) 1986 ICJ 14
}
Cont…
} The court went further
providing that:
} “It will therefore be clear
that customary international law continues to exist and apply, separately from,
international treaty law, even where the categories of law have an identical
content.” See Elworthy, S. and Holder, J, Op. Cit, at pg
131
}
Cont…
} General Principles of Law
Recognize by Civilized Nations
} Principal of good faith and
equity are commonly known general principles or municipal laws accepted by
civilized nations. Good faith which governs exercise of rights to ensure that
proper balance is struck when exercising such rights by the parties. ICJ’s
acceptance of these into source of international law is to fill in certain gaps
which may appear during a trial.
}
Cont…
} ICJ’s reliance of these
principal in the past is clear from its decisions and advisory opinions, the
ECJ has also relied on these principles in the Case EC Commission v Belgium
[1993] and generally when complying with treaty obligations each state parties
are obliged to observe good faith.
}
Cont…
} The application of equity in
the international law is not been defined but expressed widely in the treaties.
However its application needs to be understood with respect to the objective of
a particular treaty or agreement until an authoritative definition is drawn.
} General principles include
restitution in integrum and state responsibility have recognized in treaties
and judgments.
}
Cont…
} These principles of law
recognized by the civilized nations considered when they can be proved
authoritatively. Given definition in a convention will be binding between the
State parties who are signatories to that particular convention however this is
not always so, elements of customary international law could also be used to
prove that the parties are binding although they are not signatories to the
said convention.
}
Cont…
}
Subsidiary Sources
}
The primary sources are the judicial decisions and writings of
publicists
}
Cont…
} Other than ICJ there are other
international courts and tribunals. The decisions of European Court of Human
Rights (ECHR), WTO Appellate Body, International Tribunal of Law of the Sea
(ITLOS), The first Optional Protocol to International Covenant for Civil and
Political Rights(which allows individuals, whose countries are party to the
ICCPR and the protocol who claims their rights under ICCPR have been violated
who have exhausted domestic remedies to submit writern communications to the UN
human rights committee), Trial Smelter Arbitration and Pacific Fur Seal
Arbitration.
}
Cont…
} The contributions made by the
highly qualified publicists working through International Law Association, The
World Commission on Environment and Development and the International Union for
Conservation of Nature (UCN).
}
Cont…
} International Agreements
(Treaties) and Enforcement Practices
} International law seldom
stipulates how a state should implement its provisions, leaving it up to
the state to choose the appropriate procedure for the execution in the
domestic plane. Incorporation of International Law is the process by which
international agreements become part of municipal law of sovereign states.
States follow different processes of incorporating international law into their
domestic legal system, depending on their constitutional provisions in this
respect.
}
Cont…
} Thus, the process of
implementation of international law at national level varies in different
countries. The divergent State practices pertaining to incorporation of
international law into municipal law have been explained by two schools of law
– monist and dualist.
}
Cont…
} These are dualism and monism.
Dualists regard international and municipal law as separate entities,
and municipal law can only apply international law once it has been
incorporated into the legal system of the country. The incorporation of
international agreements into the national legal system can be achieved by
formal adoption through a parliamentary procedure, through other political
acts, or given effect by the national courts
}
Cont…
} Thus, an unincorporated treaty
has no formal standing in domestic law. Also, if international law conflicts
with the domestic law, then domestic law will prevail. However, this does not
necessarily mean that most states would disregard international law. In
reality, what matters is the domestic legislations, the attitude of the
domestic courts and the administrative practice, which is often inconsistent
and ambiguous. Monists regard international and municipal law as parts of
the same legal system. According to them municipal law is subservient to
international law.
}
Cont…
} A treaty may have incorporated
in to its own text enforcement provisions, such as arbitration of disputes or
referral to the ICJ. However, some treaties may not expressly include such
enforcement mechanisms. Especially in situations where the international law in
question is not explicitly written out in a treaty, one can question how this
unwritten law can be enforced. In an international system where there is no
overarching authoritative enforcer, punishment for non-compliance functions
differently.
}
Cont…
} These may include economic
sanctions, such as restrictions on trade, on South Africa in the 1980s to force
that country to end the practice of racial segregation known as apartheid.
}
Cont…
} Environmental treaties, like
other international treaties, usually rely on voluntary compliance with their
obligations, rather than on coerced compliance. Article 26 of the Vienna
Convention on the Law of Treaties of 1969 lays down the rules regarding
compliance of treaties. The Article provides for the principle of pacta sunt
servanda. The principle requires the states parties to the state to
perform/observe the treaties in good faith. Further Article 27
prohibits from enacting domestic legislation to defeat the principles of the
convention or treaty it has ratified.
}
Cont…
} Tanzania follows dualist
schools. Article 63(3) (e) of the URT Constitution provides for the requirement
of ratification and domestication of international law principle in the
municipal law. It states that the National Assembly may deliberate upon and
ratify all agreements and treaties to which the United Republic is party and
the provisions of which require ratification.
} Section 179 of the
Environmental Management Act 2004 (Act No. 20 of 2004) provides for mechanism
for the domestication of multilateral environmental agreements into municipal
law. It provides:
}
Cont…
} Section 179 (1) Where the
United Republic is a party to an international or regional agreement concerning the management of the environment,
the Minister, shall, in accordance with the relevant sector Ministry.
} Initiate and prepare
legislative proposal for consideration by the relevant Ministry for the purpose
of implementing those agreements, and
} Identify appropriate measures
necessary for the implementation of those agreements.
}
Cont,,,
} Where a sector Ministry is
involved in negotiation of an international agreement on matters relating
protection and management of environment, the sector minister concern shall,
prior to submission for ratification by the National Assembly communicate to
the Minister on the substance of the agreement with a view to assess the likely
impact on the environment.
}
Cont…
} (3) The Minister shall create
mechanism to work closely with international and regional communities to
contribute towards peaceful, healthier and better global environment for the
present and the future generation.
} (4) The Director of the
Environment shall keep a register of all international agreements concerning
the management of the environment to which the United Republic is a party.
}
International Environmental Law Principles
} The development of
International environmental law has included the statement and adoption of a
number of important guiding principles. These principles are included in a
number of multilateral environmental agreements. They play important roles in
international environmental law, which itself are one of the most rapidly
evolving areas of public international law. They can indicate the essential
characteristics of international environmental law and its institutions,
provide guidance in interpreting legal norms, constitute fundamental norms, and
fill in gaps in positive law. Principles also appear in national constitutions
and laws; and they are referred to in, and influence, international and
national jurisprudence
}
Cont..
} . Today, almost all major
binding and non-legally binding international environmental instruments contain
or refer to principles in the evolving environmental law.
} Kurukulasuriya, L. &
Robinson, N. A., Training Manual on International Environmental Law, at pg 23,
available at http://www.unep.org/environmentalgovernance/Portals/8/documents/training_Manual.pdf,
last retrieved on 5th July, 2013.
}
Cont…
}
International environmental principles include:
◦
Sustainable development.
◦
Sovereignty over natural resources.
◦
Precautionary Principle.
◦
Polluter Pays Principle.
◦
Intergenerational Principle/Equity.
◦
Intra-generational Principle/Equity.
◦
Protection of cultural and Natural Heritage.
◦
Doctrine of Public Trust.
◦
Principle of Common but Differentiated Responsibilities.
}
Cont…
• The Principle Of Sustainable
Development
Ø
It is the principle acknowledged at the earth’s summit in 1992 in Reo
Declaration
Ø
It provides that in the use of environment al resources there must be
some care taken to make sure that the health of the living organisms are of
such quality that sustains and are maintained for future generations.
}
Cont…
} Section 7 of the Environmental Management Act, 2004 provides for the
aspect of sustainable development.
} Section 3 of the EMA articulates the principle of sustainable
development.
} It refers to the development that meets the needs of the present
generations without compromising the ability of future generations to meet
their own means.
}
Cont…
} Sustainable development implies the need to reconcile values of
environmental and values of development by making sure that in decisions making
at all levels take account of environmental and development concerns.
} Sustainable development implies, then, that the supply of and health of
the natural resources are not compromised, and that humans do not suffer as a
result of development efforts.
} Thus, a healthy environment and
productive development must go hand in hand so that development is sustainable.
}
Cont…
} In conclusion, the principle of the sustainable development has
increasingly been recognized at both their international and national
jurisdictions. The principle emphasize on the following:
A) The need to
take into account concerns for present and future generations
}
Cont…
B) The
acceptance of the limits that is based on the use and exploitation of
environmental resources.
C). The need to
integrate environment and development concerns in environmental planning
} Cont...
2. The Principle Of Sovereignity Over
Natural Resources
Ø This principle was made on
1952 UN. General Assembly and was re-emphasized in 1972.
Ø It states that states have
sovereign right over their natural resources in exclusion of all other states.
Ø However it should not use it
to affect other states.
}
CONT…
} sections 5(3), 7(3) and 8 of the EMA cater for this principle of
sovereignty over natural resources. Also s. 4(1) of LA, 3(1)(b)
} Constitution of the URT in Article 9(c) and 27 on the directive
principle to ensure that public affairs are conducted in such manner that
ensure national resources and heritage are harnessed, preserved and applied to
common good; as well as duty to safeguard the natural resources.
} CONT...
3. Precautionery Principle
Ø
This principle requires preventing or rejecting development project in
absence of scientific evidence of the environmental harm that project could
cause.
Ø
It is also reflected under ss. 5(3), 7(3) of EMA
}
Cont…
}
The basis of the PP is found under Principle 15 of the
Rio Declaration which states that:-
“In order to protect the environment, the
precautionary approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.”
}
Cont…
} The principle implies that there is a responsibility to intervene and
protect the public from exposure to harm where scientific investigation
discovers a plausible
risk in the
course of having screened for other suspected causes.
}
Cont…
} The protections that mitigate suspected risks can be relaxed only if
further scientific findings emerge that more robustly support an alternative
explanation.
}
Cont…
} PP traces its origin in the mid 1980s but it had been applied in
Germany as traditional environmental law. In Germany there existed agreements
where the parties were called upon to conduct themselves in a manner where the
scientific findings were adopted to come to an agreement.
}
Cont…
} At this point in time the emphasis was to ensure that the best scientific
evidence available will be applied. Bonn Convention 1979, Article III (2) and X
(1) as well as the preamble to the Wild Heritage Convention exemplify the
necessity of the PP.
}
Cont…
}
Cont…
} One of the first international instruments that make reference to
precautionary principle is Organization for Economic Cooperation and
Development 1972.
} Today the principle is reflected in a number of international law
instruments e.g. Baltic Sea Convention 1992; the Oil Pollution Preparedness
Convention, 1990 and the Industrial Accident Convention, 1992.
} CONT...
4.Polluter Pays Principle
Ø
This principle requires that the cost of pollution must be met by person
responsible for causing the said pollution
Ø
See ss. 5(3) and 7(3) as wellas s. 2 of EMA
}
Cont…
} The principle basically demands for the person who is in charge of the
polluting activities to be financially responsible for the damage he/she
causes.
} Some commentators, however, have underlined that the principle has
merely a rhetoric value because most of the polluters will be able to pass the
costs of pollution onto customers
}
Cont…
} Polluter pays principle is
provided under principle 16 of the Rio Declaration. The principle states that,
} “National authorities should
endeavour to promote the internalization of environmental costs and the use of
economic instruments, taking into account the approach that the polluter
should, in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.”
}
Cont…
}
An early version of the polluter pays principle was developed by the
Organization for Economic Cooperation and Development (OECD) in the 1970s in an
effort to ensure that companies would pay the full costs of complying with
pollution control laws and were not subsidised by the state.
} The principle was adopted by
the OECD as an economic principle and as the most efficient way of allocating
costs of pollution-prevention-and control measures introduced by public
authorities in the member countries.
}
Cont…
} It was intended to encourage
rational use of scarce resources and to avoid distortions in international
trade and investment. It was meant to apply within a state, not between states.
As a goal of domestic policy, it has been realized only partially in practice
}
Cont…
}
The polluter pays principle has also been increasingly accepted and
applied at national level including in statutes in many countries in the
developing world, and in their national supreme courts such as in South Asia,
Africa and elsewhere in the world.
}
In the case of Indian
Council for Enviro-Legal Action v. Union of India, the respondents
operated chemical factories without the requisite licences and had not
installed equipments for treatment of the highly toxic effluent which they
discharged and hence causing pollution to the environment and people in general
(VILLEGERS RIGHT TO LIFE HAS BEEN INFRINGED)
} The Court observed that according to rule laid
down in the Oleum Gas Leak Case once the activity carried on is hazardous or
inherently dangerous;
}
Cont…
} the person carrying on such activity is liable
to make the loss caused to any other person by his activity irrespective of
whether he took reasonable care while carrying on his activity. Why? The
enterprise alone has the resources to discover and guard against the hazards
and not the victims i.e. the damage was foreseeable to the enterprise (1996) 3 SCC 212, UNEP Compendium of Judicial Decisions, Vol. I at pg
394
}
Cont…
} The court observed further
that such liability is not subject to exceptions under the rule in Rylands
v. Fletcher i.e. apart from proof of damage to the plaintiff by the act of
negligence of the defendant; there are foreseability and non-natural use of
land.
}
Cont…
} The court went on observing
that the question of liability of the respondents to defray the costs of the
remedial measures could also be looked at another angle, viz. Polluter Pays
Principle, according to which the responsibilities for repairing the damage was
that of the offending industry. The court held that;
}
Cont…
} respondents were absolutely
liable to compensate for harm caused by them to the villages in the affected
area, the soil and to the underground water and hence they were bound to remove
the sludge and other pollutants lying in the affected area and also to defray
the cost of the remedial measures required to restore the soil and underground
water source
} Cont...
5.The Principle Of Intergeneration And Intra
Generational Equity,
Ø
Intergenerational equity focuses on the rights of future generation.
Ø
Intragenerational focuses on the rights of present generation
Ø
Under this principle each generation has the right to inherit the same
diversity in natural and cultural resources enjoyed by the previvious
generations as to equitable access to use and benefits of these resources.
} Cont...
}
It requires the present
generation to make sure that in exercising its rights to use of environmental
resources environment is maintained for both present and future generation.
}
CONT…
} Each generation has the right to inherit the same diversity in natural
and cultural resources enjoyed by previous generations and to equitable access
to the use and benefits of these resources. At the same time, the present
generation is a custodian of the planet for future generations, obliged to
conserve this legacy so that future generations may also enjoy these same
rights.
} In this way, intergenerational
equity extends the scope of social justice into the future.
}
CONT…
} Generally, in intergeneration equity the present generation must make
sure that in exercising its rights to the use of the environmental resources
the products of the environmental activity is maintained or improved for the
future generations.
} Cont...
}Oposa v. Factoran
}The court said;
} Cont...
}
We find no difficult rulling that the minors can for themselves ,
for their generations and for the succeeding generations file a
class suit their personality to sue on behalf of the succeeding generations can
only be based on the concept of intergeneration and intragenerational
responsibility so far as their right to life and healthful ecology are
concerned.
}
CONT…
} The court here meant that without the principle of intergenerational
equity the children could have no locus. On appeal, the Supreme Court
overturned the decision though agreed that the minors had the locus standi but
it disagreed to cancel the licences.
}
CONT…
} In Tanzania, paragraph 2 of the National Environmental Policy provides
for intergeneration equity.
} The wildlife conservation policy 1970 quotes J.K. Nyerere in 1961 when
opening the conference of the coming into force of the African Convention “in
accepting the trusteeship of our wildlife we solemnly declare that we will do
everything in our power to make sure that our children and grandchildren will
enjoy this rich and precious heritage.”
}
Cont…
} Section 5(3) and s. 7(3)(a) and (j) deal with the principle of
intergenerational and intragenerational equity.
}
Cont…
} Principle 3 of the 1992 Rio
Declaration provides for the principle of intergenerational equity. It states
that,
} “The right to development must
be fulfilled so as to equitably meet developmental and environmental needs of
present and future generations”;
} Generally, in intergeneration
equity the present generation must make sure that in exercising its rights to
the use of the environmental resources the products of the environmental
activity is maintained or improved for the future generations.
} Cont...
6.The principle of cooperation
and common but Differentiated
Responsibilities
It basically has two elements;
Ø
Responsibility of state to protect the environment at national regional
and international level.
Ø
Necessity to take into account the different circumstances especially
with each countries distribution and involvement in making of a particular
environmental crisis.
}
Cont…
} Principle 7 of the Rio
Declaration of 1992 states that,
} “States shall cooperate in a
spirit of global partnership to conserve, protect and restore the health and
integrity of the Earth’s ecosystem. In view of the different contributions to
global environmental degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the responsibility that
they bear in the international pursuit of sustainable development in view of
the pressures their societies place on the global environment and of the
technologies and financial resources they command.”
}
Cont…
}
Principle 7 can be divided into two parts:
}
(1) the duty to cooperate in a
spirit of global partnership; and
}
(2) common but differentiated responsibilities
}
Cont…
}
In its generality the principle calls for cooperation between states in
addressing environmental issues but on the same time takes in to account
difference circumstances, particularly in each state's contribution to the
creation of environmental problems and in its ability to prevent, reduce and
control them.
} States whose societies have in
the past imposed, or currently impose, a disproportionate pressure on the
global environment and which command relatively high levels of technological
and financial resources bear a proportionally higher degree of responsibility
in the international pursuit of sustainable development.
}
Cont…
} According to the concept of
common but differentiated responsibilities, developed countries bear a special
burden of responsibility in reducing and eliminating unsustainable patterns of
production and consumption and in contributing to capacity-building in
developing countries, inter alia by providing financial assistance and
access to environmentally sound technology. In particular, developed countries
should play a leading role and assume primary responsibility in matters of
relevance to sustainable development.
}
Cont…
}
A number of international agreements recognize a duty on the part of
industrialized countries to contribute to the efforts of developing countries
to pursue sustainable development and to assist developing countries in
protecting the global environment.
} Article 4 of the 1992 United Framework
Convention on Climate Change (UNFCCC) recognizes the special circumstances and
needs of developing countries and then structures the duties and obligations to
be undertaken by states accordingly.
}
Cont…
}
The idea of common but differentiated responsibilities and respective
capabilities is stated in Article 3 of the UNFCCC as the first principle to guide
the parties in the implementation of the Convention.
} See also Articles 5 & 6 of the 1994
Desertification Convention, Article 26 of the 1996 Protocol to the Convention
on the Prevention of Marine Pollution by Dumping of Wastes and other Matter of
1972 and the fourth preambular paragraph of the 2001 Stockholm Convention on
Persistent Organic Pollutants.
}
Cont…
} Basically, the principle has
two main elements:
} Responsibility of state to
protect the environment at national, regional and international level.
} Necessity to take into account
the different circumstances especially with each countries contribution and
involvement in making of a particular environmental crisis.
}
Cont…
} 7.The Principle Of Public
Participation
} this principle is covered by
section 5(3) and 7(3) (e) of EMA.
} It requires that public be involved on matters relating to
environmental management and protection like EIA e.t.c
} Cont...
} Also section 178 covered in part
XIV Provide for the public participation in environmental issues.
} It is more pronounced in EMA than in Kenya and Uganda as well as
Zanzibar which confine public participation to the EIA only.
}
8. Protection of cultural and
Natural Heritage
} Cultural heritage comprises of
the history that is found in tradition which members of that society identify
with. Also this culture is handed over from one generation to another. It is
reflected in various ways e.g. buildings (structures), literary works, rocks,
paintings or sculptures.
}
Cont…
} Cultural heritage is part of
the non living environment and it is also protected by MEAs. There is a
Convention Concerning World Culture and Natural Heritage adopted within the
framework of United Nations Scientific and Cultural Organization (UNESCO) in
1972. This was the first international environmental instrument that recognized
the importance of the global community in the management of natural resources.
}
Cont…
} The preamble defines culture
and heritage; article 1 recognises three categories of the culture and heritage
} Monuments (a statue, building, or other structure erected to commemorate a notable
person or event/ a structure or site of historical importance or interest.)
} A group of buildings (means
architecture or places in landscape of outstanding universal value from point
of view of science, art and history)
} Sites
}
Cont…
} Article 2 stipulates Natural
heritage to mean natural features either physical or biological. Also
geological and physical formation which have a habitat geological and physical
formation which have threaten species of the wildlife and plants from the point
of view of science and conservation.
}
Cont…
} Article 4 provides for the
need to preserve culture for the future generations. By year 2004 there were
180 states that were part to the convention. Tanzania is part to this convention,
it ratified in August 2, 1977 and the following have been included:-
}
Cont…
}
Serengeti national park 1991
}
Selous Game Reserve 1982
}
Kilimanjaro national park 1987
}
The ruins of Kilwa Kisiwani 1981 –cultural site
}
The ruins of Songo Mnara 1981
}
Ngorongoro Conservation Area 1968
}
The Stone Town 2000- cultural site
}
Kondoa Rock-Art Site (2006)- Cultural site
}
Cont…
} All these are natural heritage
save for three which are cultural sites. There are other MEAs to include:
}
The Archaeological Heritage Convention 1969 and Benelux Convention on
Nature Conservation and Landscape Convention 1992 which came into force on
1993.
} On 1st February 2006, the
International Criminal Court sentenced one of the Serbs war lords inter alia,
for destruction of Dubrovnik protected under world cultural convention
}
Cont…
}
In Tanzania the National Antiquities Act, 1964 as amended in 1979 in its
preamble as well as Section 6 deals with the
powers to declare monuments. Currently monuments in Tanzania are:
}
Askari Monument which has inscription of words: To the memory of
African native troops who fought and the carriers who……………. And all other men
who died……
}
Clock tower (Samora) December.
}
State House
}
Karimjee Hall
}
Ocean Road Hospital etc
}
Cont…
} In Uganda there are also some
antiquities.
} Gwindi Impenetratable National
Park 1994
} Ruwenzori National Park 1994
} The Tombs of the Baganda Kings
at KASUBI
}
In Kenya, the Environmental Management and Coordination Act, 1998
provides in its section 53 that the minister for environment may declare
traditional interests of the local communities who are customarily resident
within the lake shore, wetland, coastal zones or river bank to be protected
interests
}
Visit also; visit: www.unesco.org.
}
9. Doctrine of Public Trust
} The origin of the doctrine of
public trust is traced back to 16th Century. Most scholars identify
the Justinian code of sixth century as the genesis of the public trust doctrine
- the doctrine of res communes which claims that some things are ‘common
to mankind - the air, running water, the sea, and consequently the shores of
the sea [and] the right of fishing in a port, or in rivers, is common to all
men’
}
Cont…
}
The title to these essential resources was vested in the state, as the
sovereign, in trust for the people. Res communes were excluded from
private control and the trustee was charged with the duty of preserving the
resources in a manner that made them available for certain public purposes.
}
Today, the concept that certain resources are common to all is prevalent
in such diverse areas as the open sea, wildlife, parks, historic monuments, and
the electromagnetic spectrum.
} Further the concept is
recognised in international, regional and national instruments Common property resources are those resources not controlled by a
single entity and access to which is limited to an identifiable community of
individuals or states
}
Cont…
} No one user has the right to
abuse or dispose of the property. Any dealing with the property has to take
into account the entitlements of others. Besides, users of common property
share rights to the resource and are subject to rules and restrictions
governing the use of those resources. See Kameri-Mbote, P., ‘The use of
the Public Trust Doctrine in Environmental Law’, 3/2 Law, Environment and
Development Journal (2007),at pg.
198, available at http://www.lead-journal.org/content/07195.pdf
}
Cont…
}
Public Trust Doctrine, a cornerstone of modern environmental law,
relates to the ownership, protection and the use of essential natural and
cultural resources.
}
It holds that certain natural resources are held by the sovereign in
trust and on behalf of all the citizens because of their unique characteristics
and central importance.
} This follows the realisation
that certain assets are inherently public and not subject to ownership by
either the state or private actors
}
Cont..,.
}
It relates to the ownership, protection and use of essential natural and
cultural resources, serving as a check against allocation mistakes by the
government with regard to public natural resources.
}
It has been used to guarantee
access to bodies of water, protect recreational lakes and beaches, wildlife
preserves and even the air.
} The public trust doctrine ensures that
governmental action can be checked to ensure that it benefits the citizenry
with regard to key environmental resources.
}
Cont…
} The English House of Lords, in
1865 defined the concept of public trust in the case of Gann v. Free
Fishers of Whitstable.
} The House of Lords held that
the bed of all navigable rivers here the tide flows, and all estuaries or arms
of the sea, is by law vested in the crown. But this ownership of the crown is
for the benefit of the subject, and cannot be used in any manner so as to
derogate from, or interfere with the right of navigation, which belongs by law
to the subject of realm.
} House of Lords, 3 March 1865, 11 E.R. 1305 (1865) 11 H.L. Cas. 192.
Cited in Kimeri-Mbote, P., Ibid.
}
Cont…
}
The doctrine of public trust is used to prohibit the government from
conveying public resources to private ownership.
} In the case of Illinois
Central Railroad v. Illinois, the state legislature had transferred
ownership of the nearly the entire waterfront of Chicago (about 1,000 acres) to
the railroad. Four years later, a new legislature sought to revoke the transfer
but the railroad challenged the revocation.
}
Cont…
}
The United States Supreme Court upheld the revocation, returned the land
to the state and stated as follows distinguishing this land as different in
character from that which the state holds in lands intended for sale:
}
Supreme Court of the United States, 146 US 387 (1892).
}
Cont…
} The court stated that;
}
“It is a title held in trust for the people of the state that they may
enjoy the navigation of the waters, carry on commerce over them, and have the
liberty of fishing therein freed from the obstruction or interference of
private parties.”
}
Cont…
}
The court went on further stating that:
}
“The control of the state for the purposes of the trust can never be
lost, except as to such parcels as are used in promoting the interests of the
public therein, or can be disposed of without any substantial impairment of the
public interest in the lands and waters remaining.”
}
Cont…
} In the case of MC Mehta v.
Kamal Nath etal, the minister granted land to the company which diverted
the river causing floods. The minister called to appear before the Court. The
Court observed that certain resources like water and air has significance in
the society so the company could not appropriate the water thus the government
had breached the trust.
} (1997) 1 Supreme Court Cases 388, See UNEP Compendium of Judicial
Decisions Vol.I at pg 259
}
Cont…
}
In Kenyan case of Abdikadir Sheikha Hassan & Others V. Kenya
Wildlife Service,
} KWS wanted to remove the animals to another
area. People went to court. The court said that only mineral and oil were
excluded from ownership, the KWS was statutorily mandated to keep animals but
not to ship.
} (1996), High Court of Kenya,
Case No. 2059/1996
}
Cont…
} In another Kenyan case of of Peter
Waweru v. The Republic, the High Court of Kenya held that
} In the case of land resources,
forests, wetlands and waterways … the Government and its agencies are under a
public trust to manage them in a way that maintains a proper balance between
the economic benefits of development with the needs of a clean environment’.
} High Court of Kenya at Nairobi, Miscellaneous Civil Application No. 118
of 2004.
}
Cont…
} In Tanzania EMA mandates the
government organs to issue licences but when doing so the public officers must
consider the issue of trust.
}
See also section 4(1) of the Land Act, CAP 113 and the Village Land Act,
CAP 114.
}
Topic three
}
POLICY, LEGISLATIVE AND INSTITUTIONAL FRAMEWORK FOR ENVIRONMENTAL &
NATURAL RESOURCES MANAGEMENT IN TANZANIA
}
General introduction
Ø
Tanzania is a union between Mainland Tanzania and Zanzibar. In the
Articles of Union there are list of issues which are to be dealt by the union
government (Union matters). These matters are also reproduced in the schedule
to the Constitution of the United Republic of Tanzania of 1977 as amended from
time to time.
Ø Environmental issues are not
union matters. This means that each part of the union government has its own
laws dealing with environment.
}
Cont…
}
The legal framework for Environmental management in Tanzania includes
the Constitution of the United Republic of Tanzania of 1977 as amended from
time to time.
}
Generally the constitution provides for the protection of environmental
and natural resources.
} However this protection is not
explicitly stated i.e. not direct as there are no specific articles providing
expressly for right to safe and clean environment.
}
Cont…
}
There are certain provisions in the constitution of the URT which could
be interpreted to mean the right to clean, safe and descent environment.
} Indeed the courts in Tanzania
have interpreted articles of the constitution and came up with the right to
clean, safe and descent environment.
}
Cont…
} As a result of linkage between
human rights, environmental law rights and constitutional rights beginning in
1990s many countries of the world put in place provisions in their
constitutions guaranteeing citizens to environmental rights
}
Cont…
} Uganda, Mozambique, South
Africa, Lesotho and Malawi have specific provisions in the constitutions
dealing with environmental protection.
} In other countries like
Tanzania and Mauritius do not have articles in the constitution but these
countries have environmental rights embodies in the framework environmental law
}
Cont…
}
The constitution of Tanzania provides in article 14 for the right to
life.
}
Others include article 27 which deals with the duty to protect natural
resources as an obligation to any citizen of Tanzania.
}
Article 26 (1) provides for the
duty to abide with the laws including those relating to environmental
management and protection.
} Article 26(2) of the
constitution deals with the duty to take legal measures to ensure that the
constitution is followed
}
Cont…
} In Tanzania in the case of Felix John
Mavika and another v. DSM City Council, the court stated that article
26(2) provides/reflects the doctrine of public trust. This was a mistake/wrong
assumption by the judiciary. Article 28(1) of the constitution is one relevant
in respect of the duty to protect the land
}
Cont…
} In the case of Joseph D.
Kessy v. DSM City Council, the judge said that “article 14 of our
constitution provides that every person have a right to live and the protection
of his life by the society. It is therefore a contradiction in terms and denial
of this basic right deliberately to expose anybody’s life to danger or what is
environmentally monstrous, to enlist the assistance of the court in this
infringement.
}
The Role of Constitutional Provisions in Environmental
protection
The Role of Constitutional Provisions in Environmental
protection
} Constitutional Rights in
respect to environmental management
} Chapter Two of the
Constitution, article 7 and 9. In article 9(c) and (j) the sustainable
development principle is articulated. However this part of the constitution is
not enforceable as per provisions of Article 7 though the government must
strive to achieve/maintain the objectives.
}
Cont…
} The inclusion of the right to
clean, safe and healthy environment is a recent development not only in
constitutions but also in international instruments. The first instrument to
have this right was the African/Banjul Charter on Human and Peoples‟ Rights,
1981; before that there was no constitution with such provisions
}
Cont…
} . Uganda, Namibia, and South
Africa have such provisions in their constitutions. In countries where such
provisions are not there, it developed from case law e.g. in India but now they
are contained in the constitution after amendment.
}
Cont…
} The whole question of the
right to public participation in public affairs in article 21 has both active
and passive aspect. It includes the right to be informed.
} Article 27 one can go to court
i.e. access to justice in order to protect the environment. This is a right
given to any person.
}
Cont…
} Also we have the right to
association; It includes the right to associate and form organizations for
protection of environment in forms of Non Governmental Organizations (NGOs),
now known Civil Society. These are like Lawyer’s Environmental Action Team
(LEAT), MPINGO.
}
Cont…
} Freedom of expression
guarantees the right to be informed. This accommodates the principle of
notification in international environmental law in which one country with
environmental problem is required to inform/notify other country. Article 18
}
Cont…
}
When we are speaking of environmental law in Tanzania, we also mean
framework legislation and sectoral/cross-sectoral legislations which include
Principal and Subsidiary legislation.
} The legislative regime in different countries
is different with respect to environmental management. In some countries the
fundamental law of the land i.e. constitution sets out the basis for
environmental protection. In other states/ countries the constitution does not
set the basis for the environmental protection.
}
Cont…
} Environmental law may also be:
} Sectoral oriented pieces of
legislation, or
} Holistic pieces of legislation
}
Cont…
}
Holistic legislation is further divided into various types:
◦
Consolidated Environmental Management Act- this is available in UK and
Zambia. Actually these have taken different scattered legislations and put them
in one act. In Zambia the laws for Environmental Impact Assessment (EIA), Laws
on pollution etc were consolidated and put into one volume law dealing with
Environmental management.
}
Cont…
}
Codes (Normally Penal Codes)- These are found in Continental Europe. In
these Codes normally everything is found. They are problematic legislations
i.e. people can not able to read the whole voluminous legislation. This is not
the legal culture of Tanzania which is Anglo-Saxons.
} Framework Environmental
Management Law – This is dominant in East Africa. Tanzania has the
Environmental Management Act, 2004; Uganda has the National Environmental
Management Act; and Kenya has the Environmental Management and Coordination
Act.
}
Cont…
}
These are designed to provide complementarity between the framework
environmental management law and the sectoral specific law. They are enacted to
provide:-
} General principles of
management which must be respected by all other legislations and constitution;
}
Cont…
– To provide coordination among
sectors in their implementations of the roles assigned to them;
– To provide for environmental
management tools/instruments;
– To provide forum of public
participation and enforcement. They co-exist with the sector specific
legislations, as EMA has not repealed them.
}
Environmental Problems in Tanzania
}
The National Environmental Policy of 1997, under paragraph 11 lists six
environmental problems, viz;
}
Land degradation;
}
Lack of accessible, good quality water for both urban and rural
inhabitants;
} Environmental pollution
}
Loss of wildlife habitats and biodiversity;
}
Deterioration of aquatic system; and
}
Deforestation.
}
Environmental Policy Framework
}
A policy is a statement of beliefs, goals, objectives, and
recommendations on a specific subject area.
} Policy offers direction of
what the government is intending to do in terms of legislative action. It
identifies problems facing particular sector and recommends/suggests/proposes
ways to combat the identified problems.
}
Cont…
}
Legislations are usually tools for implementing policies. For example,
the enactment of Environmental Management Act of 2004 was preceded by the
promulgation of the National Environmental Policy of 1997
} Policies relevant to
environment in Tanzania include the National Environmental Policy, 1997, the
National Wildlife Policy1998, the Water Policy 2002, the Forest Policy and the
Mining Policy
}
}
Sectoral and Cros-sectrol Legislations Relevant to Environment
}
Environmental issues cut across various sectors. Therefore, there are
various sectoral and cross-sectoral laws which are relevant to environmental
management. These include Land Act, 1999 and the Village Land Act, 1999; the
Wildlife Conservation Act, 2009; the Mining Act, 2010; the Marine Parks and
Reserves Act, Cap. 146 R.E 2002; the Forest Act, 2002; the Water Resources
Management Act 2009; and the Water Supply and Sanitation Act 2009 to mention
few.
}
Cont…
}
The Land Acts
}
Under the Land Ordinance, there was Granted Right of Occupancy and the
Deemed Right of Occupancy. The Granted Right of Occupancy is now covered by the
Land Act, Cap 113 of the Laws of Tanzania and the Deemed Right of Occupancy is
covered by the Village Land Act, Cap 114.
}
Under the Land Acts, all land in Tanzania is public land vested on the
President as trustee for Tanzanians as the beneficiaries. Why land in Tanzania
is public land? It is on historical reasons that Tanganyika was a Mandate
Territory under the League of Nations, which declared that land is a public
land vested under the League of Nations, and then under the British rule, the
land was vested to the Governor. This public land is classified under the Land
Act, Cap 113 to include the following:
}
1. General land
}
2. Reserve land
}
3. Village land
}
The most important category for the environmental management is the
reserved land. This is provided for under section 6(1) of the Land Act
◦
The land falling under the Forests Act, 2002 so here we deal with all
reserves;
◦
All lands under the National Parks Act;
◦
All lands under the Ngorongoro Conservation Area;
◦
Wildlife Conservation Act;
◦
Marine Parks and Reserves Act;
◦
Land designated under the Town Council Ordinance;
◦
Recreational grounds under the Public Recreation Act;
◦
Land within the natural drainage system e.g. rivers;
◦
Land under Land Acquisition Act for public purposes;
◦
Land declared as hazardous land by the Minister under the Land Act.
}
Section 7(1) of the Land Act, provides for the hazardous land. It
includes mangrove swamps area, wetlands (preserve water and flood control),
land designated for dumping wastes, land within 60 meters from the river bank,
land on slopes exceeding certain gradient, and land specified by appropriate
authorities because of its fragile nature.
}
There are also conditions attached to the Right of Occupancy under the
Land Act. Some of these conditions deal with environmental management.
}
Under the Village Land Act, the hazardous land is covered as well. These
parcels of land under VLA are known as hazard land, and the list is the same as
that provided for under the Land Act. The VLA imposes conditions on use of
customary Right of Occupancy. It emphasizes that there must be sustainable
utilization of the land.
} LECTURE IV; ENVIRONMENTAL IMPACT ASSESSMENT(EIA)
}
Is a process which aimed at identifying, predicting and evaluating the
impacts both positive and negative of running a development activity before
that activity is being allowed to be established.
}
Section 3of EMA.
} CONT...
}
It also considers the project alternatives and the available mitigation
measures to prevent or reduce the negative effects and increase or optimise
positive impacts. It is a continous intergral part of the project.
} Cont...
}
It is a tool towards achieving the sustainable and equitable development
it is not against development but it is
a tool for better development.
} CONT...
} Under section 81 of EMA there is general requirement of conducting EIA.
}
Section 97 restricts/prohibits any development project to take
place without conducting the EIA.
}
Even after the issuance of EIA Certificate NEMC may due to certain
circumstaces order a fresh EIA, example where;
} Cont...
}
1.There is a substantial change or modification in the
manner the project operates
} 2. There are environmental threats which were not initially foreseen;
}
3. In operation, the developer overlooked to undertake
the mitigation measures thus need for the fresh EIA to rectify the disturbed environment.
} Cont...
}
4• When the project was built there were no cultural
or religious impacts.
}
Public participation in the EIA process is articulated
under Section 89 of the EMA.
}
It is the Minister responsible for Environmental matters
who is vested with powers to approve the EIA in Tanzania.
} Cont...
} A minister’s decision may or not be acceptable to either the project
proponent/investor or the public being against the EIS because of the negative
impact the project may result.
} The aggrieved party is entitled to challenge the decision through
an appeal to the Environmental Appeal Tribunal s. 95 of EMA.
} Who are involved in EIA
} Project proponent/ investor
} EIA Practitioner
} Reviewers
} Decision makers
} Public
} Stages on EIA
}
Registration; This is a screening stage which determines whether the project
requires EIA or not.
}
Scoping; proceeds
where the first stage is successiful and decision is made to conduct EIA
v
The major action in this stage is to identify major environmental
issues and areas of impacts of the
project and project alternatives.
} Cont...
}
Impact prediction and evaluation; Involves
the assesment of impacts
v
Example; if one builds a textile mills what are likely to be the impacts
eg. Water pollution
v
Then identification of mitigation measures eg. Building a treatment plant or look for
alternatives available.
} Cont...
}
Environmental impact statement(EIS), In this stage a report is prepared on findings
and EIS is submitted to the responsible
authorities.
}
Review and decision making, This involves public review and statutory
review .
v
The decision maker will decide on whether the project should proceed or
not. If the project should proceed, under which conditions.
} Cont....
Environmental monitoring and
auditing, This involves daily and regular
monitoring.
v
Then monitoring reports are prepared
v
Note;EIA is an obligation to either a developer or proponent of a
project undertaking;
see 3rdschedule to EMA
} LECTURE V
Environmental Management Plan(EMP)
Environmental Management Plan(EMP)
}
An EMP is a site-specific plan developed to ensure
that all necessary measures are identified and implemented in order to protect
the environment and comply with environmental legislation. See s. 49 of EMA
} ENVIRONMENTAL AUDIT
}
It is a systematic, objective evaluation of facility
activities for a finite review period designed to:
} Verify compliance with
environmental regulations, internal policies, and accepted practices.
} Evaluate the effectiveness of environmental "management
systems" in place, and
} Cont...
} Identify and assess any reasonably foreseeable risks associated with
hazardous condition attributable to our operations and prevent or mitigate such
risks.
}
See section 101
} ENFORCEMENT OF
ENVIRONMENTAL LAW
}
Enforcement of environmental law comes in where there is no compliance
with the requirements of the law.
}
In Tanzania there are special people given the task or
mandated to enforce the environmental matters, Among others are Environmental
Inspectors who are employees of NEMC.
}
These inspectors are given enormous powers to ensure
that the law is complied as per section 183 of EMA
} CONT...
} They can also compound the
offences, as per section 194 of EMA ie. Fine the offender on the spot. (when the offender accepts/admits the offence and is willing to pay.)
} If the offender refuses the offence, he or she will be taken to court.
}
However Section 182(2) of the Act empowers the
Minister to designate public officers by name or office to be environmental
inspectors e.g. forest officers, game wardens, government chemist, District
Health Officer, etc.
} Several orders under EMA;
}
1.Restoration order
} This order derives its basis on the Polluter Pays Principle i.e. the
one who polluted the
environment is ordered to
restore the environment to a state equally or near to the state that was before
the breach. Costs of restoration and compensations may be ordered.
} Cont...
}
2.Easement order
} An easement is a certain right to use the land of another
without possessing it. Section 156 of
EMA provides for this order.
} Its aim is to further principles of environmental management as
provided in the Act.
}
The council may recommend to the Minister for the
creation of easement for the purposes of environmental protection.
} Cont...
}
3.Conservation order as per section 161
}
These are also issued on the burdened land(restrictions
apply). These may be issued to conserve; flora and fauna, quality and flow of water, preserve scenic
view, control migration for wildlife.
} Cont...
}
4.Preservation order
This is issued when someone is
conducting an activity or possesses something that if escapes can cause danger
to the environment.
Where this has been issued, a
person must prepare a written emergency response plan.
} Cont...
}
5.Protection Order as per section 196 of EMA
}
This is issued where an activity of an adverse effect
to environment and public health. This is a stop order.
} Cont...
}
6. Emergence protection order as per section 197
}
This is issued where an activity of an adverse effect
to environment and public health. This is a stop order.
} Environmental Litigations and the doctrine of locus standi
} Litigation is An action brought in court to enforce a particular
right. The act or process of bringing a case/lawsuit before the court of law.
} Locus standi is literally a place of standing, i.e. a place
to stand in court or a right to appear in a court of justice on a given
question.
} AG V. Christopher Mtikila
}
‘The orthodox common law position regarding locus
standi no longer holds good in the context of constitutional litigation in that
the notion of sufficient personal interest over and above the interest of
the general public has more to do with private law rather than public
law; in matters of public interest
Court will not deny standing to a genuine and bona fide litigant
even where he has no personal interest in the matter.”
} CONT...
}
So in environmental litigations even if one has no personal interest on
the matter can bring the matter to the court on
environment.
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