MALAWI - ENVIRONMENTAL REGULATIONS
Malawi is a landlocked country located in the southeast of the African continent, bordered by Zambia, Tanzania and Mozambique. With an area of 118,484km2 (24,404km2 of which is covered by water) and a population of over 18 million people, Malawi is one of the most densely populated countries in Africa.
Malawi’s landscape is marked by two main features – the Great Rift Valley, which runs from the north to the south of the country into Mozambique- and Lake Malawi, Africa’s third largest lake, which dominates the eastern border. The remaining land is varied, but made up primarily of a large plateau. Malawi has a sub-tropical climate, with hotter temperatures in the south and cooler temperatures in the northern and mountainous regions.
Malawi once boasted rich wildlife but the impact of illegal poaching and habitat destruction impacted greatly on the country’s animal population. That said, in recent years the government has increased conservation efforts and today Malawi is home to five national parks and four game reserves, several of which have run successful rehabilitation and reintroduction projects. Lake Malawi National Park was declared a UNESCO World Heritage Site in 1984 and is recognised as an important area for biological evolution. Lake Malawi itself is said to house around 1000 different species of fish, many of which are endemic and the lake’s cichlids are thought to be of equal scientific value to the finches of the Galapagos Islands. Elephants, rhinos, giraffes, zebras, buffalo, different varieties of primate, antelopes and hippos are amongst notable mammals. There are also numerous snake, insect and reptile species, and over 650 species of bird.
Common environmental challenges include deforestation, soil degradation from over-farming, water pollution, and siltation, which endangers the country’s fish.
PRINCIPAL LEGISLATION AND REGULATOR
Environmental matters, including environmental impact assessments (EIA), are regulated by the Environmental Management Act 2017 (EMA) which replaced the earlier 1996 law of the same title. The 2017 law appears to have removed the majority of the very few provisions which related to EIAs in the 1996 law. As such, most of the information in relation to EIAs are found only in government guidelines. It remains to be seen if the government will issue specific regulations or laws which specifically relate to EIAs. Other relevant legislation in relation to the mining industry includes the Mines and Minerals Act 1981 (MMA) and its accompanying regulations. The National Environmental Management Policy 2004 (NEMP) and the Environmental Impact Assessment Guidelines (EIA Guidelines) provide further guidance.
The EMA established the Environment Protection Agency (EPA) which is responsible for the co-ordination, monitoring and supervising of activities relating to the utilisation and management of the environment and natural resources, including the approval of the various environmental assessments provided for in the EMA (see Part III, EMA). The EPA is headed by the Director General (Director), who is responsible for the day-to-day management of the EPA (Art. 13, EMA). The EMA also makes frequent reference to the Minister, which we assume to be the Minister of Natural Resource, Energy and Environment (Minister). It is unclear from the EMA if the roles of the Minister are carried out by the Director. The EPA is also tasked with overseeing lead agencies, advisory committees, District Environment Sub-Committees and Local Environment and Natural Resources Committees (Art. 20, EMA).
Applications for Reconnaissance Licences (RL), Exclusive Prospecting Licences (EPL) and Mining Licences (ML), collectively known as Mineral Rights, must provide details of the impact of proposed works on the environment or any monument or relic in the licence area (Arts. 16(e), 25(e) & 37(h)(viii), MMA). In addition, the application for an ML must contain information on the residual effects on the environment caused by the mining operations and proposals for eliminating or controlling environmental impacts (Art. 37(h)(vi)-(viii), MMA). ML will not be granted where the proposed work programme fails to take proper account of environmental and safety factors (Art. 39(a)(i), MMA). The Minister shall take into account the need to conserve natural resources when reaching a decision on the granting of a Mineral Right and may, in the case of a ML, require that an EIA be carried out (Art. 94, MMA).
Under the terms of the EMA, the Minister has the power to specify, by notice in the Gazette, the types and sizes of projects which shall not be implemented unless an EIA is performed (Art. 31(1), EMA). Prescribed projects for which an EIA shall be considered mandatory are detailed under the EIA Guidelines. In relation to mining activities, all mining of minerals, expansions to mines and mining exploration and prospecting activities shall require an EIA, unless the Director issues a project specific exemption (s. A8, Appendix B, EIA Guidelines).
In the first instance, a screening process will be undertaken so as the need for an EIA may be determined. A Project Brief must be submitted to the Director and shall include: a description of the project; the activities that shall be undertaken to implement the project; the likely environmental impacts; the number of people to be employed; the areas of the environment likely to be effected; and any other information as required by the Director (Appendix C, C.1, EIA Guidelines). The Director shall refer the Project Brief to the Authority, which will determine the need for an EIA in line with the project screening criteria specified under the EIA Guidelines (see Ch. 2, 2.2.1 & Appendix D, EIA Guidelines). The bar is set relatively high by the screening criteria, which are also open to government discretion. The Authority shall make a recommendation to the Director on the appropriate course of action and the Director will then decide if an EIA is required. According to the EIA Guidelines, screening should ordinarily be completed within 15 days (Ch. 2, 2.2.1, EIA Guidelines). Where it is determined that an EIA is not required a written approval from the Authority must be obtained (Art. 31(2), EMA).
Where the Director determines that an EIA is required, the project proponent must retain an approved consultant to carry out the assessment and submit an EIA Report (Ch.2, 2.2.2 & Appendix F, EIA Guidelines). Terms of Reference (ToR) for the EIA shall be prepared and approved by the Director. According to the EIA Guidelines a review of the ToR should ordinarily be completed within 10 days (Ch. 2, 2.2.1, EIA Guidelines). Guidance on ToR, as well as model ToR, can be found in the EIA Guidelines (see Appendices E & F, EIA Guidelines). In summary, ToR shall include the following:
- An introduction of the proponent and project;
- A project proposal;
- EIA requirements (including the particular environmental concerns to be addressed);
- Details of environmental management;
- Financial data;
- Work Plan;
- Staffing and co-ordination details (in particular the relationship between the EIA team and the engineering team);
- Consultation requirements; and
- EIA Report content.
(See also Appendix C, EIA Guidelines).
Based on the ToR, an EIA shall be carried out and an EIA Report produced. The content of the EIA Report must match the ToR and the following information should be included, namely:
- A detailed project description;
- An Environmental Management Plan;
- Information on the environmental areas to be affected and measures for monitoring and assessing such affects;
- Details of technologies to be used for the project;
- Information and justification of the selected land area;
- A detailed description of environmental impacts;
- Measures for eliminating, reducing or mitigating environmental impacts;
- Environmental impacts on neighbouring countries (if any);
- Details of any gaps or deficiencies in the assessment; and
- Methods used in completing the EIA.
Public consultations are a mandatory aspect of the process and should allow for input from all stakeholders who may be affected by the project (Art. 5(1), EMA; see also Appendix G, EIA Guidelines). An effective consultation programme shall employ various methods of consultation such as press conferences, notices, interviews, meetings and public hearings (see Appendix G & Figure G.1, EIA Guidelines). The extent of consultations will vary depending on the specific requirements and impacts of the relevant project. At minimum, proponents should place advertisements in national and project area newspapers, informing stakeholders when a Project Brief and EIA Report have been submitted and how such documents may be reviewed; contact details should also be provided (Section G.3, Appendix G, EIA Guidelines). Results of consultations must be contained within the EIA Report.
On completion, the EIA Report shall be submitted to the Director for review. At this stage the Director may decide to hold further public consultations, including public hearings. Reviews shall be completed by the Authority with the support of expert input where required. The EIA Report shall be evaluated in line with the criteria detailed under Appendix H of the EIA Guidelines. Generally speaking, the EIA Report should be able to assist: project proponents - in planning, designing and implementing projects in a way that minimises adverse environmental impacts; the government - in deciding whether or not a project should be approved and the terms and conditions of approval; and the public - in understanding the project, its impacts and the process of review (see Appendix H, EIA Guidelines for further details).
Following review, the Director shall issue a decision on the project. Further assessment may be required or revisions to the EIA report requested. According to the EIA Guidelines the first review of the EIA report should ordinarily be completed within 50 days; where subsequent drafts are required and submitted, reviews shall generally be completed within 25 days (Ch. 2, 2.2.1, EIA Guidelines). Licensing authorities may not issue licences for projects that require an EIA until the Director has issued an approval under the EMA (Art. 31(3), EMA).
The EMA established the Environmental Tribunal (ET) (Art. 107, EMA) which is responsible for considering appeals again decisions or actions of the Authority, lead agency, Director or inspectors (s. 107(1)(a), EMA). and decision of the ET may be appealed to the High Court within 30 days (Art. 108(4), EMA).
Environmental audits may be carried out periodically (Art. 32, EMA). Projects shall be monitored and the Minister may, by notice in the Gazette, prescribe fees for such purposes (Arts. 33-34, EMA). Project proponents may also be required to submit environmental management plans to the Authority (s. 33(2), EMA). Terms relating to rehabilitation may be included in the terms and conditions of the Mineral Right (Art. 96, MMA). The Minister may require a security from a licence holder to ensure compliance with the terms of the MMA (Art. 91, MMA).