Colonial era practices of eminent domain and state-community contestation for mineral-resource ownership in postcolonial Nigeria: The search for a sustainable synergy

by | Oct 10, 2019 | SAJELP, SAJELP 2016

Colonial era practices of eminent domain and state-community contestation for mineral-resource ownership in postcolonial Nigeria: The search for a sustainable synergy

Authors Ikechukwu Umejesi

ISSN: 2616-8499
Affiliations: Senior Lecturer, Department of Sociology, University of Fort Hare, East London
Source: South African Journal of Environmental Law and Policy 2016, p. 75 – 102

Abstract

Different countries often exercise eminent domain — the power to appropriate private properties for public good. The exercise of this power by the state over properties belonging to individuals and collectives within the state is as old as the state. This paper examines how the colonial state used eminent domain principle to acquire coal-rich land in Enugu-Ngwo, Southeast Nigeria, and its implications for both the postcolonial state and the community. Evolving dynamics in the coal mining sector since the early 1990s, such as, privatization program and its impact on landownership have reignited old animosity and poisoned state-community relations in Enugu-Ngwo. These new dynamics indicate that the coal-rich community may yet become another frontier in resource-related conflict in Nigeria. Relying on the cultural theory of plural rationality, the paper explores a synergy in which actors in the conflict — state, mining companies and the local community — can find expressions in a plural framework that emphasizes justice and fairness. The paper draws on ethnographic data collected from the Enugu-Ngwo community.

Aspects of insurance for environmental damage claims: Some issues raised by proposed hydraulic fracturing

by | Oct 10, 2019 | SAJELP, SAJELP 2016

Aspects of insurance for environmental damage claims: Some issues raised by proposed hydraulic fracturing

Authors Birgit Kuschke

ISSN: 2616-8499
Affiliations: Associate Professor of Law, University of Pretoria
Source: South African Journal of Environmental Law and Policy 2016, p. 45 – 73

Abstract

Hydraulic fracturing or fracking can cause immeasurable damage to the fragile Karoo ecosystem and its water resources. The old adage that where damage goes, insurance is certain to follow, most certainly applies. Insurance against environmental damage such as that which will result from fracking poses unique challenges, for both property and liability insurance. Years often pass between the polluting conduct, the eventual manifestation of the damage and the eventual submission of a claim by an insured against his insurer. Damage is often progressive and the health of victims deteriorates over time. This will no doubt be the situation in the Karoo, as past experience in other countries such as the United States has shown that the true extent of environmental damage caused by fracking activities only manifests in future. The purpose of this contribution is to sensitise potential insurers and potential insureds of the risks and complexities of insurance claims against long-term environmental damage. Different insurance trigger events that activate insurance cover follow the different phases of polluting events or conduct and the resulting detrimental consequences. Insurance claims for loss or damage can vest on an act-committed basis, where the insurer who provided cover at the time at which the polluting act occurred incurs liability to pay out under the policy. The insurer remains liable even where the eventual loss only manifests in future. In this case an insured has a claim against a historical insurer, which can prove to be to his disadvantage if the insurance company has ceased to exist, policy limits are insufficient or policy provisions are outdated. Where a policy is issued with a loss-occurrence or loss-manifestation trigger, the loss may be claimed when the loss or damage caused by the pollution becomes evident, irrespective of when it was caused. In the case of insurance with a claims- made trigger, the policy that is in force at the time when the insured has suffered and assessed his loss and is able to submit an insurance claim, provides cover. It is irrelevant when the polluting event occurred or when the loss became evident. Insurance issued on a claims-made basis leads to retroactivity where an insurer inherits older historical claims, which can be prejudicial for insurers. Where an insured changes insurers and changes from a claims-made to a loss-occurrence trigger, and a loss occurs yet manifests only in future, the insured may not enjoy coverage at all. Risk managers, policyholders, brokers and agents must launch due diligence investigations to determine the scope and extent of insurance coverage by evaluating the effects of these specific trigger events.

What are the instrumental roles of the introduction of environmental tax in the realisation of the polluter-pays principle in Ethiopia?

by | Oct 10, 2019 | SAJELP, SAJELP 2016

What are the instrumental roles of the introduction of environmental tax in the realisation of the polluter-pays principle in Ethiopia?

Authors MT Gebregiorgs

ISSN: 2616-8499
Affiliations: Tilburg University, Mekelle University
Source: South African Journal of Environmental Law and Policy 2016, p. 3 – 43

Abstract

This research examines the instrumental roles of the introduction of environmental tax in the realisation of the polluter-pays principle under the federal jurisdiction of Ethiopia. It is a single country case-oriented comparative research design, and data triangulation is the method used to establish its validity. It first shows the recognition of polluter-pays as a principle, rule and policy to reach the idea of sustainable development. Secondly, it verifies the degradation/pollution-based redistributive, preventive and curative functions of the polluter-pays principle. Thirdly, it indicates the variations of the threshold-bound distributive and incentive bases of environmental tax according to the functions of the polluter-pays principle. Fourthly, it demonstrates the instrumental roles of: (1) Municipal and treated hazardous solid wastes, sludge, and sewer charges in covering the cost of their collection, transportation, treatment and disposal; (2) Effluent charges in restoring authorised water resources degradation; (3) Carbon tax and cap-and-trade in restoring authorised air degradation; (4) Consumption taxes in reinforcing an environmentally friendly pattern of consumption; (5) Royalties in encouraging rational use of scarce natural resources. Finally, it implies that the polluter-pays principle is contingent on setting up a range of legally viable and administratively feasible environmental taxes.