Volume 8

Loretta Feris

The Public Trust Doctrine and Liability for Historic Water Pollution in South Africa

The public trust doctrine is now, in the post-constitutional era, part and parcel of South African natural resources law. However, the precise meaning and content remain, to some extent, unclear. This is particularly true in respect of the relationship between the public trust doctrine and the polluter pays principle and the extent to which liability for pollution and degradation of natural resources also lies within the realm of the public trust doctrine. This article sets out to explore the public trust doctrine in South African law and its potential for assigning liability in a natural resources law context. It does so in the context of South Africa’s challenges in dealing with acid mine drainage (AMD), a legacy from defunct mines, but a continuing by-product of existing mining. It revisits the traditional scope of the public trust doctrine and argues for an expansive view in line not only with the constitutional imperatives embodied in South Africa’s environmental right, but also by way of an analogy between the public trust doctrine and the common heritage of mankind principle as it presents itself in international environmental law. In doing so this article also explores the development of the doctrine in US law which in some respects has set the course for its application with respect to natural resources law.

Simon West

Institutionalised Exclusion: The Political Economy of Benefit Sharing and Intellectual Property

The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing (Protocol) has been hailed as providing unprecedented legal support for indigenous and community control over genetic resources and associated knowledge by ensuring that such groups benefit more equitably from the use and subsequent proceeds of biological resources. This paper will analyse this claim critically, situating access and benefit sharing (ABS) regimes within the broader political economy of intellectual property articulated in the negotiations of the TRIPS Council monitoring the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD). While the CBD principle of sovereignty over natural resources allows biodiverse developing state parties to regulate access to intellectual and genetic resources subject to national laws and the aims of the CBD, the concept of ‘facilitated access’ used to fulfil this right attaches itself purely to state parties and does not necessarily improve the lot of local and indigenous peoples. Indeed, the implementation of state level access regimes together with the principle of downstream benefit-sharing effectively excludes local people from exercising any autonomous legal rights over resources and rather creates a state of legal dependency among knowledge and resource rich communities on dominant and exclusionary IPR structures. Therefore while the material interests of local and indigenous communities may have been addressed in a limited manner by the Protocol – for instance in terms of strengthening provider state obligation to implement benefit-sharing schemes – ABS regimes inherently preclude secure legal recognition for local and indigenous control over intellectual and genetic resources. Moreover the general lack of legalisation achieved by the Protocol stakes even these limited “gains” upon further negotiations designed to flesh out its provisions and on the actions of national governments not predisposed to ensuring the equitable participation of local and indigenous communities in law-making processes.

Michelle Lim

Laws, Institutions and Transboundary Pasture Management in the High Pamir and Pamir-Alai Mountain Ecosystem of Central Asia

Enhanced rangeland governance is a priority for the governments of the post-Soviet Central Asian states of the Kyrgyz Republic and Tajikistan. Major transitional challenges confront the newly independent states of Central Asia. These challenges include the withdrawal of subsidies previously provided by the centralised Soviet government; moves towards privatisation and the conversion of administrative boundaries to international boundaries. In this context transboundary approaches to rangeland management are essential. This paper highlights the challenges for effective pasture management in the Pamir, Pamir-Alai ecosystem; the inadequacies of pasture-related legal instruments and the absence of institutions for the implementation of these instruments. Transboundary management is hampered by the lack of agreements between the two countries and the differences between national level laws and institutions. Meaningful transboundary agreements and the harmonization of national level laws would be a significant step towards achieving sustainable transboundary pasture management. However, on their own these legal tools are insufficient. Long-term effective pasture management in the Pamir, Pamir-Alai ecosystem necessitates that the causes of degradation are addressed. Mountain communities would also need to be convinced of economic and other benefits before current resource-use practices could be expected to change. Institutional and capacity building and adequate funding are also fundamental to ensuring the effectiveness of any legal instruments that are developed and any strategies that are employed.

Dejo Olowu

Menace of E-Wastes in Developing Countries: An Agenda for Legal and Policy Responses

Undoubtedly, one of the most manifest indices of new age globalisation has been the transboundary movement of toxic and hazardous waste products, principally from developed countries to the developing countries otherwise known as the “Third World”. While waste generation is essentially a domestic problem, the issue has assumed global importance as industrialised countries continually seek convenient disposal sites outside their own shores. Despite increasing global, regional, and national legal and policy interventions to curb the menace of toxic and hazardous waste dumping, however, the problem has largely not abated. Against the backdrop of the enormous negative consequences of the transboundary movement of toxic and hazardous waste products in developing countries, and the impunity engendered by this ubiquitous practice, is it not high time that new strategies were evolved for tackling this menace? With the global proliferation of information technology continuing to escalate at an exponential rate, driven largely by the lure of exploiting the globalised info-tech market, this essay accentuates the latent dangers looming in developing countries particularly with regard to electronic wastes. Reflecting on the litany of treaties already adopted in responding to the problem of toxic and hazardous wastes, this essay attempts to highlight alternative policy and strategic initiatives against current trends.

Angela Mwenda and Thomas N. Kibutu

Implications of the New Constitution on Environmental Management in Kenya

The importance of anchoring environmental management in a country’s constitution cannot be over-emphasised. Kenya attained its independence from British colonial rule in 1963 but environmental management issues were not explicitly provided for in the constitution. The promulgation of a new constitution on 27 August 2010 heralded a comprehensive provision for environmental management in Kenya. This paper reviews these specific provisions and their implications, and concludes that the country is now positioned to better manage the environment. The paper also cautions that the implementation of these provisions is the most important phase after promulgation. It thus urges Kenyans to be vigilant, like they were during the search for the new constitution, and to ensure that they actualise their ‘right to a clean and healthy environment’, among other provisions.

Olawale Ajai

Law, Water and Sustainable Development: Framework of Nigerian Law

The central issues of economic development and environmental protection in the current social, political and economic environment relate to water – an overlooked or less glamorous natural resource. For example, topical and sometimes controversial issues such as crude oil and minerals extraction, pollution control, biodiversity protection, energy and power, resource control, revenue allocation and political participation, etc., relate directly or indirectly to water resources management. This paper seeks to identify and present in a schematic and conceptual manner and to highlight the usefulness of folklore for sustainable development and evaluate the usefulness of recruiting traditional institutions into the institutional framework for modern sustainable water resources management in Nigeria It also discusses the emergent law on water resources as well as the issues concerning the domestic and international riparian law, in particular the River Niger and Lake Chad basins and explores how folklore, comparative law and international law may be adopted and adapted to aid the development and application of water law, and by direct implication sustainable development in Nigeria.

Muhammed Tawfiq Ladan

Review of NESREA Act 2007 and Regulations 2009-2011: A New Dawn in Environmental Compliance and Enforcement in Nigeria

Nigeria’s formal environmental regime has developed significantly from humble beginnings. Having been initiated in the colonial period during which environmental issues were generally couched within public health regulation, and having developed in a rather ad hoc manner in the early days of independence during which heavy reliance was placed on the law of nuisance, Nigeria now has a relatively comprehensive environmental regime. This regime is administered by an array of institutions.

This paper reveals that Nigeria now has relatively comprehensive environmental legal and institutional regimes adequately empowered to ensure effective compliance, monitoring and enforcement of all relevant treaties, legislation and regulations for sustainable development and conservation of natural resources in Nigeria. The NESREA Act 2007 and Regulations 2009-11 were instruments of necessity having learnt lessons from the drawbacks of its predecessor agency between 1991-2007.

This review aims at providing an overview of a comprehensive environmental legislation in most recent times for effective protection of the environment, management of biodiversity and promotion of sustainable development in Nigeria. It further seeks to provide an overview of the unprecedented development in Nigeria’s environmental law by the coming into force of twenty-four environmental regulations made by the Federal Minister of Environment.


Administrative and Policy Bottlenecks in Effective Management of Van Panchayats in Uttarakhand, India

by B.S. Negi, D.S. Chauhan and N.P. Todaria

Van Panchayats were formed under the Panchayat Forest Rules, 1931 and have since been incorporated under section 28(2) of the Indian Forest Act, 1927. The stated objectives of Van Panchayats were to protect and develop the forest and to distribute its produce among stakeholders in an equitable manner. The rules, on the one hand, make Van Panchayats responsible for proper management of the forests; on the other hand, they deny Van Panchayats the necessary authority and financial autonomy, which continues to be vested with revenue and forest officials. Over a period of 80 years (1931-2001), a gradual decline in the overall authority of Van Panchayat has taken place. The responsible factors in erosion of Van Panchayat include policy bottlenecks, over-representation and little accountability of the Forest Department, diversity of community institutions, impact of Joint Forest Management on village communities, shift in the locus of decision-making outside the village and increased conflicts. This paper discusses these factors in detail.