Parliamentary submission..

Submission by the Hon Minister of Tourism, Environment and Natural Resources on Regulation 24
of Statutory Instrument Number 28, the Environmental Protection and Pollution Control
(Environmental Impact Assessment) Regulations, 1997
Background
The Environmental Impact Assessment (EIA) Regulations were formulated as a tool for assessing
the impact of developmental projects on the environment, in conformity with international environmental
practices and standards. The EIA Regulations outline the complete procedure for developers or projects
proponents to undertake environmental impact assessments, and also identify whether or not an
Environmental Project Brief or an Environmental Impact Statement should be prepared for assessment of a
project.
When a developer has completed the EIA process, the project documents prepared must be
submitted to the Environmental Council of Zambia for review. The review takes into consideration any
negative impact the project may have on the environment and determines whether or not adequate
mitigating measures have been put in place by the developer to counter the same.
After reviewing the project documents, the Council renders a decision either authorizing the
project to proceed or rejecting the project, and in each case gives reasons for so deciding.
Regulation 24 of the Environmental Impact Assessment Regulations (S.I. No. 28 of 1997)
Regulation 24 prescribed the procedure to be undertaken when a developer or project proponent is
aggrieved by a decision of the Council made pursuant to the EIA Regulations and the procedure referred to
above. It provided as follows:
24 (1) “If any party is aggrieved by the decision of the Council, that party may, in writing appeal
to the Minister against the decision of the Council within a period of ten days after the receipt of the
decision letter from the Council.
24 (2) The Minister shall render his decision within fourteen (14) days of receiving the appeal.
24 (3) If the aggrieved party is not content with a decision of the Minster, he may appeal to the
High Court.”
Regulation 24 was, however, inconsistent with the provisions regarding appeals as outlined in the
principal Act, the EPPCA, which provided, under section 95 as follows:
“95 (1) A person aggrieved with any decision or ruling made by an Inspector under this Act may
appeal to the Council within forty-five days after the date of receipt of the ruling or decision.
(2) The Council, within thirty days after receiving an appeal, shall make and convey its decision
to the appellant.”
Section 2 or the EPPCA states that “Council” means the Environmental Council established under
section three.
To this end, Regulation 24 of S.I. No. 28 of 1997 shifted the appeal authority by conferring it on
the Minister and not the Council.
The Ministry’s view
While acknowledging that Regulation 24 was in conflict with section 95 of the EPPCA already
referred to, it was perhaps of importance to apprehend the spirit in which the EIA Regulations were
formulated. The EPPCA had intended for the ECZ Inspectorate to undertake any and every function of the
Council, as prescribed in section 6 of the Act, which revolved mainly around activities addressing pollution
control, such as the licensing of facilities and subsequent monitoring for compliance.
At the time of enacting the EPPCA, the environmental impact assessment process had not been
fully conceived under the Zambia Environmental Regulatory Framework. It should be noted, in this
regard, that the EPPCA was only enacted in 1990, while the ECZ as an environmental regulatory body
became operational in 1992. During the enforcement of the EPPCA, it became necessary to legislate for
the environmental impact assessment process, which was incorporated into the economic developmental
process worldwide.
The process of preparation of the EIA Regulations was generally devoid of consideration of
inconsistencies and/or conflict with certain provisions in the principal Act such as the appeal process
prescribed therein. The justification for inclusion of the Minister in the project approval process was
derived from section 6 (4) of the EPCA, which provides as follows:
“The Minister may give to the Council such general or specific directions with
respect to the discharge of its functions as he may consider necessary and the
Council shall give effect to those directions.”
The law provides that an aggrieved party has a right of appeal. In this case, it was appropriate that
the Ministry was given authority to re-visit the case and provide guidance to ECZ. Meanwhile, it was the
Ministry’s intention to address legislative inconsistencies under discussion herein. To this effect, the
Ministry has submitted to the Law Development Commission that it re-visits Regulation 24 of S.I. No. 28
of 1997 in order to facilitate harmonisation with the principal (EPPCA) and related Acts for a coherent
appeal process in the Zambian Environmental Regulatory Framework.
In addition, the Environmental Council of Zambia, under the Copperbelt Environmental Project,
was embarking on a review of the Environmental Legislation. The review would be comprehensive and
was intended to address gaps, conflicts and/or any inconsistencies currently obtaining in the (EPPCA) and
its regulations.
Your Committee informed the Hon Minister that his colleague, the Hon Minister of Justice and
Attorney-General, had submitted that Regulation 24 of Statutory Instrument No. 28 of 1997 was ultra vires
the principal Act and, therefore, was null and void. In view of this, they asked the Hon Minister to state
when Regulation 24 would be repealed in order to bring the Statutory Instrument into conformity with the
principal Act.
The Hon Minister submitted that he could not give a time frame as other pieces of legislation
being reviewed had taken long to be addressed by the Law Development Commission.
Your Committee, however, informed the Hon Minister that amending a Statutory Instrument need
not take long as the process did not require the participation of the Law Development Commission.
Committee’s Observations and Recommendations
Your Committee observe that Statutory Instrument No.28 of 1998, particularly Regulation 24, is
ultra vires the principal law, the Environmental Protection and Pollution Control Act, No.12 of 1990.
Your Committee, therefore, recommend that this Statutory Instrument be amended to bring it into
conformity with the principal Act. This will ensure that the law, as enacted by Parliament, is respected.
Furthermore, vesting the power of deciding whether a project is environmentally sound in the
Environmental Council of Zambia will lessen disputes as has been evidenced in the past. A case in point is
the Zambezi Oil and Transport saga in Ndola and many other cases in Lusaka and Kafue over which the
Minister and the Environmental Council of Zambia have differed.