Wiser to restrain ongoing activity than risk irreparable damage to the environment – Zambian judge
In what could prove the preliminary to a crucial conservation-related battle, perhaps even one of the most important environmental law disputes of the year for Zambia, the high court in Lusaka has ordered two Tanzanian-owned ventures on the edge of a national park, to stop cutting down trees, clearing vegetation or putting up any further constructions.
The companies have also been ordered not to take more water from the Luwombwa River than allowed in their water permit.
Judge Charles Kafunda heard the application for an interim order to restrain the two companies, Gulf Adventure and Lake Agro Industries. The application was brought by the Kasanka Trust which helps co-manage the reserve along with Department of National Parks and Wildlife. The trust was supported by two neighbouring community forest management groups.
According to the trust, Gulf Adventure was given permission to set up a wildlife sanctuary in 2018, but it had since occupied more than 5 000 hectares of land in a buffer zone that covers significant parts of the two community forests. They were also alleged to have ‘significantly encroached’ on the Kasanka national park by fencing and introducing non-native species of animals into the Kafinda Game Management Area (KGMA).
The court was also told that Gulf Adventure had cleared more than five hectares of riparian water berry trees for a 200-metre stretch on both sides of the Luwombwa River and in so doing had destroyed a riverside habitat. Further, the company had built over 14 km of ‘wide gravel roads, an airstrip and permanent dwelling structures’ in the area.
As to Lake Agro Industries, the trust said it had been carrying out large scale commercial farming activities and had cleared more than 860 hectares of native forest in the KGMA and had diverted the Luwombwa River for its own use, taking ‘large and unregulated quantities’ of water from the river to feed the seven centre pivots it had installed ‘without any licence or permit’.
Between 2019 and 2021, the Ministry of Tourism and Arts had issued orders to Lake Agro saying it had to stop its activities, but it had not obeyed. According to the applicants, the establishment of commercial agriculture such as this in an ‘ecologically and climatically sensitive area could have [a] potentially irreversible negative impact’.
Gulf Adventure and Lake Agro, via the MD of both, Abulaziz Ahmen Muhamed, opposed the application for an interim order. He said that Lake Agro had title over the land that lay at the heart of the application. He had been given permission to undertake commercial activities there by ‘appropriate authorities’.
He said that the Kasanka reserve was more than 7.5km away from his farm and that his business would be ‘prejudiced’ if the injunction were granted as it would stop farming activities there. More than 180 local people, employed by the two entities, could be left destitute if the application were granted and it would also be ‘discriminatory’ since there were other farmers in the area who were not cited in the application.
Judge Kafunda said the principles had long been established that an injunction would not be granted unless it was necessary to protect from irreparable injury. This was injury that was ‘substantial’ and that could never be adequately remedied by damages.
He said it was not in dispute that the two entities had ‘leasehold titles’ for the areas where they were carrying out various activities. But despite these titles, counsel for the applicants argued there were serious questions to be tried, especially since they were encroaching on the KGMA and carrying out various activities without proper authority.
‘I agree ... and find there are serious issues to be tried’.
Would damages be adequate as a remedy (part of the test for an interim order to be granted)? According to the applicants, cutting down trees threatened the ecological balance and biodiversity of KGMA and that if the two entities were not restrained, ‘the damage on the environment will be irreparable and incapable of being atoned for in damages.’
Judge Kafunda then quoted from an earlier decision by Judge Mubanga Kondolo of the Court of Appeal: ‘Disputes to do with damage to the environment reside in a hallowed place and should enjoy the principles that apply to loss of land where one does not have to prove irreparable damage.
‘In my view, one does not need to prove that damage to the environment will result in irreparable injury because, once damages, the environment, like land, cannot be restored to its original state and the damage may result in untold suffering for generations.’
Judge Kafunda’s opinion was that the status quo ‘should not be maintained. It would be wiser to restrain ongoing activity rather than risk irreparable damage to the environment.’
He said an injunction in this case would have the effect of protecting the environment from any further damage’, and ordered the two entities to stop any further tree felling, clearing of vegetation or construction works including fencing on the land. It was also to stop taking any more water from the river than stated in the water permit.
The decision was welcomed by organisations involved in conservation in that area.
Kasanka is home to what commentators say is the world’s largest mammal migration – up to 10 million straw-coloured fruit bats migrate every year to the wetlands in Kasanka for a few months, creating a ‘globally significant biological spectacle’ that attracted many tourists and helped strengthen Zambia’s ‘fastest growing economic sector’.
According to the Conversation Action Trust, a non-profit organisation dedicated to protecting specific species of fauna and flora, Lake Agro claimed to have permission to occupy the land because it made a payment to the local traditional authority, Chief Chitambo. ‘However, the chief doesn’t have authorisation to give away that amount of land or override the legal restrictions set out in the general management plan.’