L304/320 – Environmental Law - Assignment

COVER SHEET

LLB19217222
Student ID Number

Mode of study(Full Time, Part FULL-TIME

Time or Distance)

ASSESSMENT CRITERIA FOR LECTURER’S USE ONLY

NO NARRATION MARK MARK

ALLOCATION SCORED

1 Identification of the correct legal issues 10

2 Identification of the correct and relevant law applicable to the case 40

and correct use of legal authorities

3 Application of the law and analysis. Dose the assignment create a 40

golden thread

4 Does the presentation conform to the recommended OSCOLA 10

referencing style i.e. citation of case law, Statue and other legal
authorities

TOTAL MARKS 100

Rights to nature refers to the entitlement that man has to the natural environment in that

they are entitled to a healthy and clean environment and to develop through the

environment1, this entitlement to the environment extends to every human being including

those unborn therefore, all have a responsibility to look after the environment for the

present and future generation. Rights to nature on the other hand is recognising that our

eco system just like human beings have rights in all its form to exist, persist, maintain and

regenerate its vital cycles. This denotes that there should be a balance between what is

good for human beings against what is good for nature. From the two concepts it has been

brought to light that the rights to nature and the rights of nature have a common goal which

is to ensure that the environment is protected and preserved. It is however the

responsibility of the people to enforce these rights on behalf of theirselves and the eco

system. Therefore, applying the concepts implies that in whatever activities that man

engages in there should be full consideration taken to ensure that the environment is not

harmed.

One of the ways in which the above concept can be enforced is through environmental

impact assessment which is an examination conducted to determine whether or not an

activity has or will have an adverse impact on the environment 2. This examination seeks to

promote sustainable development and gives decision makers an insight on the expected

effects before a project is launched. section 53 gives a duty to all to inform the agency of

any activity that affects or may affect the environment. Section 3(1)4 tells us that projects

that require an assessment shall not be implemented unless there is a conclusion of

environmental impact assessment and a decision letter has been issued by council.

Section 7(1)5 further says that where it has been determined by council that significant

impact on the environment shall be caused by a project, an environmental impact

1 https://www.therightsofnature.org/what-is-right-of-nature/
2 Act No. 12 of 2011
3 Act No. 12 of 2011
4 Statutory Instrument No. 28 of 1997
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statement shall be required and the developer shall be informed within forty days of

receiving the project brief from the developer. With the above, subdividing the major forest

reserve for development through the Statutory instrument No. 62 is likely to cause

irreparable damage, the above shows that legislature provides for such situations thus it is

possible to successfully apply the above concept through an environmental impact

assessment as legislature provides for it. Section 46 brings out the right that society has to

a healthy and clean environment then section 37 further says subject to the constitution, if

there is any inconsistency between the provisions of the environmental management act

relating to any other written law then the provisions of the Act shall prevail hence any law

that has been created that is against the provisions of the right to a clean and healthy

environment and the duty to protect the environment like the SIs put in place that will harm

the environment shall be rendered inconsistent. In light of the above, the concept of rights

to nature v rights of nature is successfully applicable.

The challenges to be faced include the lengthy process of conducting a full environmental

impact assessment such as the stages outlined under the 4th schedule of the

environmental management act. The processes which include approval of persons

preparing EIS and EIA, getting signatures of every person involved and another perfect

illustration is seen in section 7(1)8 that it takes 40 working days just to prepare an

environmental impact statement. Furthermore another challenge would be enforcing the

right under section 49 that brings out the right to a clean and healthy environment owing to

the fact that the constitution does not directly provide for the right to a clean and healthy

environment.

The precautionary principle according to section 210 outlines that environmental damage

should be avoided before it occurs, the above situation shows serious irreversible

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10 Act No. 12 of 2011
environmental threats owing to the fact that the river will consequently dry up which is an

irreparable damage likely to occur therefore there is need for the government to take

precautionary action immediately seeing to it that a possible risk has been demonstrated.

Similarly, in leach v national parks wildlife service and shoal haven city council 11 it

was noted that the principle was directed towards the prevention of serious or irreversible

harm like that of the above situation where the river is likely to dry up hence decision

makers ought to be cautious. furthermore in R v state for trade and industry 12 it was

noted that the principle intends to avoid long term harm to the environment itself rather

than damage to human health from transitory conditions therefore this is the perfect

principle to be applied in that long term harm is likely to occur to the environment. With that

being stated, the precautionary principle is best to solve the above issue as it will curb the

damage before it occurs.

Sustainable development is development that meets the needs of the present generation

without compromising that of the future generation 13. The case of Garcikovo Nagymaros

Project14 tells us that the court must hold a balance between environmental considerations

and developmental considerations. This means that in as much as the decision makers

are on a quest to subdivide the forest reserve for development they must put into

consideration the environment. In light of the above the principle of sustainable

development can be best used to solve the issue at hand owing to the fact that it puts into

consideration development and the environment in order to strike a balance.

BIBLIOGRAPHY

STATUTES

The Environmental Management

The Environmental Protection and Pollution Control Regulations, 1997

11 [1993] NSWLEC 191

12 Vol.7
13 IBID
14 CIJ 1997
CASES

Garcikovo Nagymaros Project CIJ 1997

Leach v national parks wildlife service and shoal haven city council [1993] NSWLEC 191

R v state for trade and industry vol.7

INTERNET SOURCES

The global alliance for nature https://www.therightsofnature.org/what-is-right-of-nature/