Benkel Industrial Limited v Attorney General (2023/HP/A/003) [2024] ZMHC 129 (5 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ( CWIL JURISDICTION) 2023/HP/A/003 IN THE MATTER OF: APPEAL FROM THE DECISION OF THE MINISTER OF GREEN ECONOMY AND ENVIRONMENT DELIVERED ON THE 19TH OF DECEMBER, 2022 IN THE MATTER OF: SECTION 116 (2) OF THE ENVIRONMENTAL MANAGEMENT ACT, 2011 AS READ WITH RULE 3 (1) OF THE HIGH COURT (APPEALS) (GENERAL) RULES, 1984 BETWEEN: HENKEL INDUSTRIAL LIMITE AND -· ~ :F - .~ - - : I r-- PF ~!"'I' \t I - - - - - - A 0 5 JUN 2024 LLANT · ATTORNEY GENERAL REG/<, SPONDENT BEFORE THE HONOURABLE MR. JUSTICE ~V. SILOKA, ON THIS 5TH DAY OF JUNE, 2024. ~ 7, LU · For the Appellant For the Respondent: Mr. N. Mwiya - Principal State Advocate, Mr. K. Malikebo, State Advocate : Mr. V. N. Shoulande - Gil & Steph Advocates JUDGMENT CASES REFERRED TO: 1. Wilson Masauso Zulu Vs Avondale Housing Project Limited (1982) ZR 172. 2. Communications Authority Vs Vodacom Zambia Limite/4fSC:Z Judgment No. 21 of 2009). ' . · ~: ~ . ~t~i/1 ~t~:o,. ,-\,\\ 3. Santa Fe Pacific Railroad Co. Vs United States (378 F. 2d 72) (7th cir. 1967). 4. Nkongolo Fanns Limited Vs Zambia National Commercial Bank Limited, Kent Choice Limited (in receivership) and Charles Huruperi (SCZJudgment No. 19 of2007). 5. Sackett Et UX Vs Environmental Protection Agency (598 US) 2003. 6. Leatch Vs National Parks and Wildlife Service and Shoalhaven City Council (81-LGERA 2 70). 7. Chief Chanje Vs Zulu (Appeal No. 13/2008) (2012) ZMSC 23 (27 March, 2012). 8. Attorney General Vs Achiume (1983) Z. R. 1. 9. Fuel Retailers Association of Southern Africa Vs Director- General Conservation and Environment, Mpumulanga Province and Others (CCT 67/06) 2007 (ZACC13). 10. Warkworth Mining Limited Vs Bulga Milbrodale Progress Association Inc (2014) NSWCA 105; 56 NSWLR 527 200 LGERA 375. I I. Embassy Supennarket Vs Union Bank Zambia (SCZ No. 25 of 2007) ZLR 2007, p. 227. 12. Nyampala Safaris (Z) Limited Vs Zambia Wildlife Authority (2004) ZR49. LEGISLATION REFERRED TO: 1. Section 25 (2) (b) of the Environmental Management Act, No. 12 of 2011. 2. Articles 2.3, 3.1 and 3.2 of the Ramsar Convention 1.0 INTRODUCTION 1.1 The Appellants on the 23 rd September, 2021 submitted an Environmental Project Brief to the Zambia Environmental Management Agency for a proposal to conduct mineral exploration activities for gemstone, gypsum, limestone and tale in the proposed project area located in Chief Chongo's area, Monze District. -J2- 1.2 The Zambia Environmental Management Agency on 3 rd June, 2022 , rejected the Appellant's project brief. 1.3 Thereafter, the Appellant appealed to the Minister of Green Economy and Environment against the decision of the Agency. 1.4 On 19th December, 2022 , the Minister rejected the Appellant's appeal and upheld the Agency's decision rejecting the Appellant's Project Brief. 1.5 Dissatisfied with the holding of the Minister, the Appellant appealed to this Court. 2.0 THE GROUNDS OF APPEAL AND THE APPELLANT'S CASE 2 . 1 The Appellant launched four (4) Grounds of Appeal which are couched as follows : (1) The Minister erred in law and fact when he held that the proposed project site is within the ecologically sensitive area when in fact the project site is not only on the outskirts of the Kafue Flats but also in an area where there is already human activity; (2) The Minister erred in law and fact when he ignored the fact that the nature of the proposed gypsum exploration is less disruptive and therefore easily remediable; (3) The Minister erred in law and fact when he purported to hold that the fact that the project site is allegedly in RAMSAR Site means no mineral exploration activities can take place therein as Zambia is duty bound under the RAMSAR Convention to preserve and ensure the continuance of such an ecologically sensitive area; and (4) The Minister erred in law and fact when he held that there are no management or monitoring activities that the -J3- Appellant could possibly propose that could be sufficient to convince him to permit the project. 2.2 Heads of Argument in support of the Grounds of Appeal were duly filed. 3.0 GROUND ONE (1) The Minister erred in law and fact when he held that the proposed project site is within the ecologically sensitive area when inf act the project site is not only on the outskirts of the Kafue Flats but also in an area where there is already human activity. - 3.1 Ms. Shoulande in support of Ground One submitted that the proposed project site is not within the ecologically sensitive area. 3.2 According to Counsel, Zambia being a party to the convention on wetlands of international importance especially as Waterfowl Habitat (Ramsar, Iran 1971) (herein after referred to as "the Ramsar Convention") is mandated to designate suitable wetlands within its territory for inclusion in a list of wetlands of international importance and that the boundaries of each wetland shall be precisely described and also delimited on a map which may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six meters at low tide lying within the wetlands. 3.3 Pursuant to Article 2.1 of the Ramsar Convention, Counsel submitted that each contracting party to the Ramsar Convention is under an obligation to designate suitable wetlands within its territory for inclusion in a List of Wetlands of International Importance (herein after referred to as "the Ramsar List") whose boundaries are to be precisely described. -J4- 3.4 According to Counsel, the Ramsar List shows that Zambia has designated wetlands within its territory. One of the wetlands included on the Ramsar List is the Kafue Flats with the boundaries clearly described as follows: 1. Kafue Flats 28 / 08 / 19 Southern Central 600,500 ha 15° 40'S 027° 16'E 3.5 Counsel also submitted that in her analysis of the longitude coordinates on the map, the Kafue Flats longitude coordinate of 027° 16'E (27 degrees 16 minutes East of the prime meridian) is nowhere near the Appellant's proposed project site longitude coordinates of 27° 18' 06"E (27 degrees 18 minutes 6 seconds East of the prime meridian) and 27° 19· 48"E (27 degrees 18 minutes 6 seconds East of the prime meridian). 3.6 According to Counsel, the foregoing difference can therefore only mean that the Appellants proposed project site is not within the Kafue Flats and is thus not within an ecologically sensitive area in terms of the Ramsar Convention. 3.7 Counsel contended that, the Minister erroneously held that the proposed project site was within the ecologically sensitive area when in fact the project site is not within the Kafue Flats and thus not within ecologically sensitive area; and further, there is already human activity in the proposed project site. 3.8 Counsel further submitted that the holding of the Minister that the Appellants' proposed project site was within an ecologically sensitive area was made in the absence of any relevant evidence; and on a proper view of the evidence before it (the GPS Coordinates of the boundaries of the proposed project site in comparison to the GPS Coordinates of the boundaries of the Kafue Flats as set out in the Ramsar List). -JS- 3.9 In support of the above, Counsel referred the Court to the case of Wilson Masauso Zulu Vs Avondale Housing Proiect Limited(1l and the Communications Authority Vs Vodacom Zambia Limited(2) for the proposition that the appellate Court will not reverse findings of fact made by a trial Judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the evidence, no trial Court acting correctly, can reasonably make (emphasis theirs). 4.0 GROUND TWO ( 1) The Minister erred in law and fact when he ignored the fact that the nature of the proposed gypsum exploration is less disruptive and therefore easily remediable. 4.1 It was Counsel's submission that the Minister should have allowed the proposed project because the Appellant seeks to carry out the exploration of gypsum in the proposed site. 4.2 According to Counsel, exploration is different from the development of a mine , as it is an activity undertaken to ascertain the existence , location, extent or quality of a mineral deposit (see Santa Fe Pacific Railroad Co. Vs United States{3l). 4 .3 According to Counsel since gypsum occurs on, at or near the surface of the earth, the proposed nature of exploration of gypsum which will include trenching and pitting will not be so disruptive to the environment and can therefore easily be remedied. 4.4 It was Counsel's further submission that the Minister erred when he did not take into account the nature of the proposed -J6- gypsum exploration when rendering his decision. Counsel referred the Court to the case of Nkongolo Farms Limited Vs Zambia National Commercial Bank Limited, Kent Choice Limited (receivership) and Charles Huruperi(4l where the Supreme Court guided that an Appellate Court will interfere with findings of fact if the lower Court, in assessing and evaluating the evidence, failed to take into account some matters which ought to have been taken in to account. 4.5 It was also the submission of Counsel that in light of the above guidance, the Minister should have taken into account the nature of the gypsum exploration which is by way of simple methods of trenching and pitting and which is less disruptive because gypsum is found near the surface of the earth and that because the exploration method of gypsum is less disruptive the effects to the environment can easily be remedied, and therefore, the Minister should have also taken into account the "Decommissioning and Closure Plan" appearing on page 95 and 96 of the Record of Appeal. 5.0 GROUND THREE (iii) The Minister erred in law and fact when he purported to hold that the fact that the project site is allegedly in RAMSAR Site means no mineral exploration activities can take place therein as Zambia is duly bounded under the RAMSAR Convention to preserve and ensure the continuance of such an ecologically sensitive area. 5.1 According to Counsel, that the Minister erred in law and fact when held that no mineral exploration can take place in a -J7- Ramsar Site; as mineral exploration activities would disturb the ecological functions of the area. 5.2 It was Counsel's submission that there is no dispute that the Kafue Flats is a wetland and is included in the Ramsar List. Therefore , in terms of Article 3.1 of the Ramsar Convention, Zambia has an obligation to formulate and implement plans that promote the conservation of the Kafue Flats. 5 .3 It was Counsel's submission that the fact that Zambia has an obligation to promote the conservation of the Kafue Flats by virtue of it being included in the Ramsar List does not mean that no mineral exploration or other human interference can take place therein . 5.4 It was Counsel's submission that Articles 2.3 and 3.2 of the Ramsar Convention are instructive. Article 2.3 of the Ramsar Convention effectively provides that the inclusion of the Kafue Flats in the Ramsar List does not take away Zambia's sovereignty in respect of the wetland. This therefore means that Zambia still retains overall authority over the Kafue Flats . 5.5 It was also Counsel's submission that Article 3.2 of the Ramsar Convention recognizes that human interferences may occur in a wetland and therefore places an obligation on a contracting party to inform the organization pursuant to Article 8, of a change , changing or likely change in the ecological character of the wetland resulting from technological developments, pollution or other human interference. 5. 6 Further, Counsel in support of the above submission referred the Court to Section 25 (2) (b) of the Environmental Management Act, 2011 which provides that: -J8- (2) A person shall not, except in accordance with the written authorization of the Agency, given after consultation with the Board and the Minister responsible for Water Resources Management. a) Reclaim or drain a wetland; b) Disturb a wetland by drilling or tunneling in a manner that has, or is likely to have, an adverse impact on the wetland or adversely affect the ecosystem; c) Introduce in a wetland an exotic animal or plant; or d) Plant species in a wetland. 5.7 Counsel further argued that Section 25 (2) (b) allows a person to disturb a wetland by drilling or tunneling in a manner that has, or is likely to have, an adverse impact on the wetland or adversely affect the ecosystem provided that such person has written authorization of the Agency given after consultation with the Agency's Board and the Minister responsible for water management. 5.8 It was Counsel's submission that in the case in casu, the proposed project site is not within the Wetland (Kafue Flats). Further, the effects to the environment in the proposed project site as a result of the exploration activities will be less disruptive and can easily be remedied given the nature of the proposed gypsum exploration. 5.9 Counsel further submitted that even assuming that no mineral exploration activities can take place in the Wetland, the application in casu should be allowed because as demonstrated, the project site is not within the Wetlands (Kafue Flats) and thus -J9- any exploration activities in the proposed project site will not have an adverse effect on the Kafue Flats. 5.10 It was Counsel's submission that the purported holding by the Minister that no mineral exploration can take place in a Ramsar Site, was made in the absence of any relevant evidence as such following the guidance in Wilson Masauso Zulu Vs Avondale Housing Proiect Limited( 1l, the Court should interfere with the said holding. 6.0 GROUND FOUR 6 .1 The Minister erred in law and fact when he held that there are no management or monitoring activities that the Applicant could possibly propose that could be sufficient to convince him to permit the project. 6.2 Counsel submitted that the Appellant has provided for impact assessment and mitigation measures in its project Brief appearing on page 82 , 83, 84 and 85 of the Record of Appeal. 6 .3 The recommendations for environmental management appearing on pages 82 , 83 84 and 85 of the Record of Appeal include, inter alia: a) b) c) Landform protection Air pollution control water system pollution control Vegetation destruction control 6.4 It was Counsel's submission that the mitigation and environmental recommendations suggested would be sufficient to remedy the effects the exploration activities would have on the environment more so that the Ramsar Convention does not prohibit mineral exploration or human interference in a Wetland . -JlO- 6.5 Also , in terms of Section 25 (2) (b) of the Environmental Management Act 2011, a person may cause disturbance to a Wetland which is likely to have an adverse impact on the Wetland or adversely affect the ecosystem if such person has the written authorization of the Agency given after consultation with its Board and the Minister responsible for Water Resources Management. 6.6 Counsel finally submitted that the Minister erred when he held that there could be no management or monitoring activities that the Appellant could possibly propose that could be sufficient or convince the Minister to permit the Appellant's project, yet the Appellant had indicated the Management and monitoring activities he was going to undertake. 7 .0 RESPONDENT'S SUBMISSIONS 7.1 GROUND ONE 7 .2 That the Minister did not err in law and in fact when he held that the proposed project site is within the ecologically sensitive area when in fact the project site is not only in the outskirts of Kafue Flats but also in an area where there is already human activity. 7 .3 Counsel for the Respondent submitted that the coordinates for the Kafue Flats' boundaries are 15° 40'8 027° 16'E. 7.4 Counsel further submitted that according to the List of Wetlands of International Importance published on 12th October, 2023 provides as follows: "Geographical coordinates provided in this list are merely notional "center points" for quick reference and are not intended to be legal specifications; for sites with complex shapes or multiple parts, the -Jll- center points may not even lie within the sites boundaries. For detailed information on Ramsar Site boundaries, consult the Ramsar Information Sheets submitted by the parties (Ramsar Sites Information Service)." 7.5 It was Counsel's submission that it is clear from the above except that geographical coordinates provided in the List are merely notional "center points" for quick reference and are not intended to be legal specifications; for sites with complex shapes or multiple parts, the center points may not even lie within the sites' boundaries. 7 .6 Counsel further submitted that the Appellant's heavy reliance on the coordinates does not assist its case because geographical coordinates are not intended for legal specifications. According to Counsel, center points may not even lie within the site's boundaries. It is therefore immaterial to submit that the Appellants project site is not within the Kafue Flats and can therefore not be within an ecologically sensitive area in terms of the Ramsar Convention. 7.7 It was Counsel's submission that the Ramsar Convention allows - contracting parties to mark clearly the boundaries within which they identify a Wetland. However, it is important to note that the limits set are not conclusive in relation to the extent of the Wetlands. The Wetlands may extend to an area that may not necessarily be in the marked boundaries of the Wetland. 7 .8 It was Counsel's further submission that the Minister was on firm ground to refuse the exploration as this area is in a Wetland that has to be protected. Counsel referred the Court to the USA -J12- case of Sackett Et UX Vs Environmental Protection Agency5 l wherein it was held inter alia that: "The Wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the Wetland begins." 7.9 It was Counsel's submission that the Minister was on firm ground to decline the proposal because this area is ecologically sensitive as the exploration activities from the Appellant would disrupt the national biodiversity of the area. 7.10 Counsel further submitted that the Minister has the mandate not to grant permission when he is of the view that public policy is more important than individual interests. 7 .11 Counsel further submitted that the Minister was on firm ground when he held that the proposed project site is within the ecologically sensitive area inspite of the fact that the project site is not only in the outskirts of Kafue Flats but also in an area where there is already human activity. 7.12 It was Counsel's submission that in any event, Article 255 (d) of the Constitution of Zambia provides that: "(CJ Where there are threats of serious or irreversible damage to the environment, lack of full scientific certainty shall not be used as a reason/or postponing cost - effective measure to prevent environmental degrading' "(d)' the conservation and protection of ecologically sensitive areas, habitats, species and other environment shall be done in a sustainable manner." -J13- 7 . 13 In support of the above assertion, Counsel referred the Court to the case of Leatch Vs National Parks and Wildlife Service and Shoalhaven City Council(6l. 7.14 It was Counsel's submission that the Minister was cautious in making the decision in casu as guided in the Leatch case cited above. 7 .15 As regards the submission regarding the finding of fact, counsel submitted that the same cannot stand because there was relevant evidence upon which the Minister made the finding of fact. The finding of fact was therefore not perverse as insinuated by the Appellant. 7 .16 In support of his submission , Counsel relied on the case of Chief Chanie Vs Zulu(7 l where the Supreme Court citing the case of Attorney General Vs Achiume(8l, stated thus: "The Appellate Court will not reverse findings of fact made by a trial Judge unless it is satisfied that his findings in question were either perverse or made in the absence of any evidence or upon a misappropriation off acts or that they were findings which on a proper view of the evidence, no trial Court acting correctly can reasonably make." 7 .17 It was Counsel's submission that the decision of the Minister was not perverse because the Minister relied on sufficient evidence from ZEMA and the Department of National Parks and Wildlife under the Ministry of Tourism and Arts. 7 .18 It was Counsel's submission that not only does the Kafue Flats fall under the RAMSAR Site but it is also in the GMA and that the license wholly falls in Kafue Flats Game Management Area -J14- e bordering the Lochinver National Park and serves as a corridor for animals from the Park into the GMA. 8.0 GROUND TWO 81. The Minister did not err in law and fact when he ignored the fact that the nature of the proposed Gypsum Exploration is less disruptive and therefore easily remediable. 8.2 It was Counsel's submission that the Minister in determining the application is guided by the relevant environmental policies, guidelines and standards published by ZEMA. Most importantly the Minister is not bound by the findings and recommendations of the person conducting the inquiry, in this case the Appellants. As the Minister makes his own judgment whether the damage may be reparable or not. 8.3 It was Counsel's submission that, with the guidance from the Department of National Parks and Wildlife, the Minister was on firm ground to uphold ZEMA's decision more so that the EFB itself confirms at page 48, paragraph 6.1.2.7 titled 'Disturbance to Animal Life'. That "project involves land clearing and this in itself disturbs habitat for various types of wildlife." 8.4 In support of the above, Counsel referred the Court to the South African case of Fuel Retailers Association of Southern Africa Vs Director - General Conservation and Environment, Mpumulanga Province and Others{9 l wherein it was held inter alia that: "Development cannot subsist upon a deteriorating environmental base. Unlimited development is detrimental to the environmental and the destruction of the environment is detrimental to the development. Promotion of development requires the protection of -J15- the environment. Yet the environment cannot be protected if development does not pay attention to the costs of environmental destruction. The environment and development are thus inexorably linked." 8 .5 It was Counsel's submission that in the light of the above guidance, it is the desire of every state to develop but development must pay attention to the costs of environmental destruction. 8.6 Counsel referred the Court to the case of Warkworth Mining Limited Vs Bulga Milbrodale Progress Association Inc(10l wherein the New South Wales Court of Appeal did not allow an extension of a coal mine had the following to say: "I have found amongst other things, that the project would have significant and unacceptable impacts on biological diversity, including an endangered ecological communities, noise impacts and social impacts; that the proposed conditions of approval are inadequate in terms of the performance criteria set and the mitigation strategies required to enable the project to achieve satisfactory levels of impact on the environment, including the residents and community of Bu lga; and that the proposed conditions of approval, including by combining the Warkworth Mine with the Mount Thorley Mine, are likely to make monitoring and enforcing of compliance difficult, thereby raising the possibility that the project's impacts may be greater and more adverse than allowed by the conditions of approval." -J16- '- 8.7 It was Counsel's submission that the Court in this case had to consider the damage that would occur once granted the permission to the Mine. Similar to the case at hand, the EPB does not guarantee that the exploration shall not be detrimental to the environment. The only test is after the fact. 8.8 In the same Wakworth Mining 10 l case the Court went further to talk about biodiversity by stating that: "The conservation value of the remote biodiversity areas lies in their providing habitat for threatened fauna that might be impacted by clearing and mining of habitats of those fauna in the disturbed area. In this sense, the offsets relate to the same specific components of biological diversity being impacted by the project. However, there is insufficient evidence to establish that the impacts on the relevant threatened fauna caused by the project will be offset by the Management and permanent protection of the remote biodiversity areas. For example, the evidence does not establish that the viability or numbers of the population of the relevant threatened fauna in the disturbance area or adjoining lands. Principle 9 for the use of biodiversity offsets is that offsets should be based on a reliable, quantitative assessment of the impact of a project on a component of biological diversity (such as on a particular threatened species of fauna) and the conservation gain to that threatened species of fauna from the effect. The methodology must be based on the best available science, be reliable and used for calculating -J17 - '- both the loss from the project and gain from the offset (principle 9 oftheprinciplesforthe use of biodiversity off sets)." 8.9 It was Counsel's submission that the Court's reasoning behind this submission is that one cannot really determine which part of the biodiverse ecology would be affected unless the damage happens. This is because biodiversity is so diverse that you may find that a very small organism which may be eaten by plants or animals may actually form an integral part of the ecosystem in the particular area. 8.10 Counsel submitted that in light of the above submissions, it is imperative to note that the method of exploration proposed by the Appellant has disadvantages that may affect the biodiversity of the said land which is the minister bone of contention. 8.11 Counsel submitted that in accordance with the National Engineering Handbook (Section 8), Engineering Geology at page 1 of Chapter 2, it states that: "If bedrock is not at shallow depths, deep trenches or test pits should be off set from the centerline ... " This means that the process may not necessarily be conclusive at shallow level. The Appellants may have to go deeper to find the desired results which is the main concern of the Minister. Once the process starts, at what point does it guarantee an end? 9.0 GROUND THREE 9 .1 The Minister did not err in law and fact when he purported to hold the fact that the project site is allegedly in a RAMSAR Site means that no mineral exploration activities can take place therein as Zambia is duty bound under the RAMSAR -J18- ._ Convention to preserve and ensure the continuance of such an ecologically sensitive area. 9.2 It was Counsel's submission that the Appellant appear to have misconstrued the Minister's decision. At no point did the Minister state that no mineral activities can take place in the RAMSAR Site. 9.3 It was Counsel's submission that the Minister's decision is based on the strong reservations put forward by ZEMA. The Decision Letter by ZEMA is clear at paragraph 4 . 1.2 that the consumptive nature of mineral exploration disturbs the ecological function which is against the principles of wise use of the Wetlands as prescribed by the Convention on Wetlands of International Importance . 9.4 According to Counsel, Article 3 (1) of the RAMSAR Convention on Wetlands of International Importance of which Zambia is a party (and the Kafue Flats being identified as such) , states as follows: "The contracting parties shall formulate and implement their planning so as to promote the conservation of the Wetlands included in the List, and as far as possible the wise use of Wetlands in their territory." 9.5 It was Counsel's submission that the preservation of the Wetland is for more important to humanity's progression than the need to have a Mine or exploration activities. In this regard, the Minister was on terra firma not to allow for the exploration. 9 .6 Counsel further submitted that Article 4 (4) of the RAMSAR Convention on Wetlands and International Importance especially as Waterfowl Habitat states that: -J19- •. "The contracting parties shall endeavor through Management to increase waterfowl populations on appropriate Wetlands." 9.7 According to Counsel, the implication of the above (9.6) is that parties to this convention have made a commitment not to curtail but enhance the functionality of the Wetland as it has various masters to serve. 9.8 It was Counsel's submission that the Minister's decision was made and anchored on several principles of environmental law which include among others, the precautionary principle. Principle 15 of the 1992 Rio Declaration states that: "In order to protect the environment the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postposing cost - effective measures to prevent environmental degradation." 9 .9 According to Counsel, the Minister did not in any way err when he did not grant the Appellant permission to explore and that he acted within the confines of the law which grants him mandate to make the decisions that he made. 10.0 GROUND FOUR 10 .1 The Minister did not err in law and fact when he held that there are no management or monitoring activities that the Appellant could possibly propose that could be sufficient or convince him to permit the project. 10.2 Counsel submitted that though the Appellant submits that it provided for "impact and mitigation measures assessment and -J20- '- mitigation on page 82 and 83 of the Record of Appeal, in order to appreciate the d.ecision of the Minister on this ground, the Court was referred to page 120 of the Record of Appeal wherein the Minister stated thus: "Lastly, the Applicant in Ground 5 and 6 proposes that it will set up 'strict management and monitoring plan and it will be committed to environmental management but has not illustrated the manner in which monitoring and management will be carried out. In any event, due to the sensitive nature of the location of the proposed project, our own desire to green the economy and protect the environment coupled with the obligations internationally on the country to protect and preserve a RAMSAR Site, there are no activities that the Applicant could possibly propose that could be sufficient or convince me to permit the project to proceed." (emphasis theirs) 10.3 According to Counsel , it was difficult for the Minister to envision the manner in which the monitoring and management would be carried. 10.4 Counsel further submitted that the Record of Appeal will show at page 112 paragraph 4 . 1.6 of the Decision Letter that even ZEMA observed that the proposed mitigation measures are inadequate to satisfactorily mitigate the adverse effects . 10.5 Counsel further submitted that the main reason of rejection is due to the sensitive nature of the project location and the international obligation on the country to protect and preserve the RAMSAR Site. It is for this reason that the Minister stated that there are no activities that the Appellant could possibly -J21- propose that could be sufficient or convince him to permit the project to proceed. 10.6 It was further submitted that the Minister performed his statutory duty properly and cannot be stopped. Counsel referred the Court to the case of Embassy Supermarket Vs Union Bank Zambia(11l (in liquidation) where it was stated that: "Where a statute imposes a duty on a person, the person charged with the performance of the duty cannot be estopped from exercising his statutory powers." 10.7 Further Counsel referred the Court to the case of Nyampala - Safaris (Z) Limited Vs Zambia Wildlife Authority 12l where it was held that: " ... and it is not part of that purpose to substitute the opinion of the Judiciary or individual Judge for that of the authority constituted by law to decide the matter in question." 11.0 THE HEARING 11.1 On the 27 th of March 2024 , the Matter came up for hearing. 11.2 Ms. Shoulande , Counsel for the Appellant informed the Court that she would rely on Heads of Argument filed on 22 n d September, 2023 and also Heads of Argument in Reply. 11.3 Mr. Mwiya , Counsel for the Respondent also informed the Court that he would rely on the Heads of Argument dated the 13t h of November, 2023 , save to add that the Appellants are placing reliance on the GPS co-ordinates for the Kafue Flats but that those co-ordinates are merely Notional Center points for quick reference and are not intended to be legal specifications. -J22- 11.4 According to Counsel since the co-ordinates are not intended to , be used for legal specifications, the Minister was on firm ground and that the Appeal lacks merit and that it should only suffer one fate , which is dismissal with costs. 11.5 In reply Ms. Shoulande, submitted that while the GPS co ordinates are not intended to be legal specifications, the same can still be relied upon as there is no prohibition for relying on the same . 11.6 Counsel further submitted that even assuming that the said co ordinates cannot be relied upon, the Appellant has demonstrated factors which the Minister should have taken into account when making his decision. 11 . 7 According to Counsel, one factor of importance 1s that the proposed exploration is less destructive and can easily be remedied. 11.8 I am greatly indebted to both Parties for the spirited arguments submitted before me. 12.0 ISSUES FOR DETERMINATION 12 . 1 The issues for determination are as listed in 2 . 1 (1-4) above. 13.0 ANALYSIS AND DECISION 13.1 GROUND ONE (i) Whether the Minister erred in law and fact when he held that the proposed site is within the ecologically sensitive area when in fact the project site is not only on the outskirts of the Kafue Flats but also in an area where there is already human activity. 13.2 In support of Ground 1, Ms. Shoulande submitted that the Minister erred in law and fact when he declined the proposal because the proposed project site is not within the ecologically -J23- sensitive area and further that there was already human activity in the proposed site and that the holding of the Minister that the Appellants proposed project site were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on the proper view of the evidence, no trial Court acting correctly can reasonably make. 13.3 On the other hand Mr. Mwiya submitted that the Minister was on firm ground when he refused the exploration because the area is in a Wetland which is ecologically sensitive. 13.4 Mr. Mwiya also submitted that it was correct for the Minister to refuse the proposal inspite of the fact that there was a presence of human activity in close vicinity of the proposed site. 13.5 As regards the findings of fact, Counsel submitted that the Minister correctly refused the proposal because the Minister took relevant factors which influenced his decision . 13.6 I have considered the submissions of both parties in relation to ground one. To be able to address ground one properly, I will address it as follows: (i) whether the proposed site was within an ecological sensitive area. 13.7 As a starting point, it is important to firstly acknowledge that the Kafue Flats is a Wetland. The Kafue Flats being a Wetland means that the said Wetland is protected by the Convention on Wetlands of International Importance especially as Waterfowl Habitat to which Zambia is a party. 13.8 Further Article 2.1 of the Ramsar Convention provides: "Each contracting party shall designate suitable Wetlands within its territory for inclusion in a list of -J24- L _ _ __ _ • Wetlands of International Importance herein after referred to as "the List" which is maintained by the Bureau established under Article 8. The boundaries of each Wetland shall be precisely described and also delimited on a map and they may incorporate riparian and costal zones adjacent." 13.9 Distilling from the said Convention, it is clear that each contracting party to the Ramsar Convention is under obligation to designate suitable Wetlands within its territory for inclusion in a list of the Wetlands of International Importance (herein after referred to as the RAMSAR List) whose boundaries are to be precisely described . 13.10 In line with the RAMSAR Convention, Zambia has designated Wetlands within its territory. One of the Wetlands included on the Ramsar List is the Kafue Flats with its boundaries clearly described as follows: Kafue Flats 28/08/19 Southern Central 600,500 ha 15° 4o·s 021° 1s·E 13.11 Therefore, the interpretation of the RAMSAR List through the Global Positioning System (GPS) coordinates for the Kafue Flats boundaries are 15° 4o·s 027° 16-E. 13.12 In view of the GPS, Counsel for the Appellant has argued that since the GPS of the proposed project is 27° 18'E 06'E, the said proposed project is therefore not within the Kafue Flats and is not within an ecologically sensitive area in terms of the RAMSAR Convention. 13.13 On the other hand, Counsel for the Respondent has argued that it is incorrect to go by the GPS interpretation as advanced by the Appellants. -J25- e 13.14 In order to resolve this issue, guidance will be sought from a publication on Wetlands published on 12th October, 2023 which provides as follows: "Geographical Co-ordinates provided in this list are merely notional "center points" for quick reference and are not intended to be legal specifications; for sites with complex shapes or multiple parts. The center points may not even lie within the site's boundaries." 13. 15 Further guidance will be sought from Article 2 ( 1) of the RAMSAR Convention on Wetlands of International Importance especially Waterfowl Habitat which states that: "Each contracting party shall designate suitable wetlands within the territory for inclusion in a list of wetlands of international importance, herein after referred to as the ''the list" which is monitored by the bureau established under Article 8. The boundaries of each wetland shall be precisely described and also delimited on a map and they may incorporate riparian and coastal zones adjacent." 13.16 As rightly submitted by Counsel for the Respondents, it is my considered view that it is incorrect for the Appellants to rely on the GPS in the way they have done because GPS is merely a notional center point which is not intended to be used as a legal specification. It is used as a mere quick reference point. 13.17 Further as Article 2 of the RAMSAR Convention guides, though contracting parties of the Convention are allowed to mark clearly the boundaries within which they identify a Wetland, it is important to note that the limits set are not -J26- conclusive in relation to the extent of the Wetlands. The Wetlands may extend to an area that may not necessarily be in the marked boundaries of the Wetland. This is in tandem with the guidance given in the case of USA case of Sacket et UX Vs Environmental Protection Agency5l wherein it was held inter alia that: "The Wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the Wetland begins." 13.18 In my view, it will be incorrect to try to come up with definite area within which a given Wetland lies because it cannot be determined with certainty where the Wetland starts and ends and which river flow in and out of the Wetland. This is so because it is not possible to see what is underground and, the time that is done the habitat would have been damaged. 13.19 From the foregoing, I am persuaded to hold that the Minister was on firm ground when he declined the proposal because this area is ecologically sensitive as the exploration activities from the Appellant would disrupt the national biodiversity of the area. More so that various life forms are dependent on the area and any exploration activities, will not only affect the area but also the various life forms that exist within the area. (ii) Whether the Minister should not have declined the proposal for the fact that the project site was not only in the outskirts of the Kafue Flats but also in an area where there is already human activity. 13.20It was Counsel's submission that the Minister erred when he declined the proposal for the project site because the site was not only in the outskirts of Kafue Flats but also in areas where -J27- there is already human activity as indicated in paragraph 5.10 (Human Settlement) and paragraph 5.10.8 (Agricultural Land) of the Project Brief appearing on page 58 and 59 of the Record of Appeal. 13.2 lln response, Counsel for the Respondent submitted that the Minister was on firm ground when he held that the proposed project site is within the ecologically sensitive area when in fact the project site is not only in the outskirts of Kafue Flats but also in an area where there is already human activity. 13.22 In addition, Counsel for the Respondent argued that 1n his decision, the Minister acted within the confines of the Constitution in particular Article 255 (d). 13.23 Counsel further submitted that in declining this Application, the Minister was being cautious as guided in Article 255 (d) and the case of Leatch Vs National Parks and Wildlife Service and Sholhaven City Council.(6l 13.241 have considered the arguments of both parties. In order to resolve this point adequately, I will refer to what the Minister said on this issue on page 119 of the Record of Appeal (paragraph 30) as follows: "In relation to Ground 1, from the offset I will say that it is no justification on the part of the Applicant to assert that the presence of human activity in close vicinity of the proposed project site should automatically grant approval to increase the human activity in the area. The fact that the Applicant considers the project site to be in the "outskirts" of the Kafue Flats does not mean that it is any less -J28- within the Kafue Flats and as such still in an ecologically sensitive area." 13.25 What I glean from the Minister's statement is that, the presence of human settlement does not automatically impose an obligation on the Minister to allow the project. 13.26 In m y considered view, the Minister in line with Article 255 (d) is required to conserve and protect environmental degradation of ecologically sensitive areas , habitats , species and other environment. 13 .27 In the case of Leatch Vs National Parks and Wildlife Service and Shoalhaven City6l, the Land and Environment Court of New South Wales stated as follows: "The Court also observed that when there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. It was noted that this principle is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision makers should be cautious. Application of the precautionary principle appears to be most apt in a situation of a scarcity of scientific knowledge of species population, habitat and impacts. Indeed one permissible approach is to conclude that the state of knowledge -J29- is such that one should not grant a licence to ''take or kill" the species until much more is known." 13.28In my considered view, the Minister was correct to have declined the proposal even though there is a school and settlements nearby. 13.29The Minister was cautious in refusing the Application because exploration may have adverse effect on the environment compared to the settlements that are already on site. As indicated in the EFB the exploration was going to involve pitting, and trenching, which activates are more likely to affect the Wetland. - 13.30In refusing the Application the Minister, was protecting the environment from degradation in light of the climatic changes that are causing adverse effects on mother earth and which has not spared Zambia too. 13.31 The refusal is not only a cautious step but also justifiable because the extent of the exploration is not known just as the composition of the Wetland is also not known. In the absence of such knowledge it is advisable to be cautious as the Minister did. (iii) whether the Minister's decision was perverse and made in the absence of my relevant evidence and a proper view of the evidence before it. 13.33 It was the submission of Counsel for the Appellant that the holding of the Minister that the proposed project site was within an ecologically sensitive area was made in the absence of any relevant evidence, and on a proper view of the evidence before it (the GPS co-ordinates of the boundaries of the proposed project site in comparison to the GPS co-ordinates -BO- of the boundaries of the Kafue Flats as set out in the RAMSAR List). In support of the above , Counsel referred the Court to the case of Wilson Masauso Zulu Vs Avondale Housing Proiect Limited(1) and the case of the Communications Authority Vs Vodacom Zambia Limited(2 ) for the proposition that the appellate Court will not reverse findings of fact made by a trial Judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the evidence , no trial Court acting correctly can reasonably make . 13.33 In response , Counsel for the Respondent submitted that the same cannot stand because there was relevant evidence upon which the Minister made the finding of fact. According to Counsel, the finding of fact was therefore not perverse as insinuated by the Appellant. Counsel referred the Court to the case of Chief Chanie Vs Zulu(7 ) where the Supreme Court cited with approval the case of Attorney General Vs Achiume(B) . 13.34 In my considered view, the decision of the Minister was not perverse because the Minister relied on sufficient evidence from ZEMA and the Department of National Parks and Wildlife under the Ministry of Tourism and Arts. For instance at page 112 of the Record of Appeal , there is a Decision Letter from ZEMA which states at paragraph 4.1.1 that: "The license area falls wholly in the Kafue Flats Game Management Area (GMA) bordering the -J31- Lochinver National Park and serves as a corridor for animals from the Park into the GMA." 13.35In my considered view, the decision was not perverse as it was made based on the evidence generated by ZEMA and the Department of Wildlife. 13.36ZEMA indicated to the Minister that the proposed site was within a Wetland which was an ecologically sensitive area while the Department of Wildlife indicated to the Minister that the said area was a corridor of wild animals. 13.37With such expert evidence from technical bodies charged with preserving the environment, the Minister's decision cannot be said to have been perverse. I must state that the Minister adequately considered the evidence before him, that is both the Appellants and Respondents and, the fact that the Minister was persuaded to consider the evidence of ZEMA and Department of Wildlife does not make his decision perverse. 13.38Having stated as such, ground one fails and is dismissed. 14.0 GROUND TWO (ii) Whether the Minster erred in law and fact when he held that no mineral exploration can take place in a RAMSAR Site; as mineral exploration activities would disturb the ecological functions of the area. 14.1 It was Counsel's submission that the fact that the Kafue Flats is a Wetland and is included in the RAMSAR List and Zambia has an obligation to promote the conservation of the Kafue Flats by virtue of it being included in the RAMSAR List does not mean that no mineral exploration or other human interference can take place. Counsel relied on Article 2.3 and 3.2 of the Ramsar Convention. -J32- 14.2 It was Counsel's submission that pursuant to Section 25 (2) (b), a Wetland can be disturbed by drilling or tunneling in a manner that has or is likely to have an adverse impact on the Wetland or adversely affect the ecosystem provided that such person has written authorization of the Agency given after consultation with the Agency's Board and the Minister responsible for Water Management. 14.3 It was Counsel's submission that in light of the guidance of Section 25 (2) (b) exploration activities such as the one intended to be undertaken by the Appellant may occur in a Wetland with the written authorization of the Agency after the consultation with its Board and the Minister responsible for Water Resources Management. 14.4 It was the further submission of Counsel that in the case 1n casu, the proposed project site is not within the Wetland (Kafue Flats) and that the effect to the environment in the proposed project site as a result of the exploration activities will be less disruptive and can easily be remedied given the nature of the proposed gypsum exploration. 14.5 It was Counsel's further submission that even assuming that no mineral exploration activities can take place in the Wetland the Application in casu should be allowed because the project site is not within the Wetlands. 14.6 It was Counsel's further submission that the proposed mineral exploration should be allowed because the Minister's decision was made in the absence of any relevant guidance as guided in Wilson Masauso Zulu Vs Avondale Housing Project Limited(1l. -J33- 14.7 In response to Ground two , Counsel for the Respondents submitted that the Minister correctly declined the Application because in determining the Application the Minister was guided by the relevant environment policies, guidelines and standards published by ZEMA and that the Minister was not bound by the findings and recommendations of the person conducting the inquiry, in this case , the Appellants. 14.8 According to Counsel, the Minister makes his own judgment whether the damage may be repairable or not. 14.9It was Counsel's submission that with the guidance from the Department of National Parks and Wildlife , the Minister was on firm ground to uphold ZEMA's decision . In support of this, Counsel referred the Court to the South African case of Fuel Retailers Association of Southern Africa Vs Director - General Conservation and Environment Mpumulanga Province and Others-9 ) and the case of Warkworth Mining Limited VS Bulga Milbroadale Progress Association lnc(10l. 14. 10 I have considered the arguments of both Parties in relation to ground two. 14.1 lAs a starting point, I must state that it is not in dispute that the Kafue flats is a Wetland and Zambia being a party to the RAMSAR Convention under Article 3.1 has an obligation to formulate and implement policies that promote the Convention of the Kafue Flats. 14. 12 Further, the Kafue Flats being a Wetland pursuant to Article 3.3 imposes on Zambia as a contracting party an obligation to balance between Conservation and development in the Wetlands. -J34- 14.13To effectively implement Article 3.2 and 3.3, Zambia through ZEMA regulates and monitors development projects that are to be implemented in Wetlands pursuant to Section 25 (2) (b) and Section 115 (2) of the Environment Management Act. 14.14Having stated as aforesaid the questions to be answered then are: (i) Does the inclusion of the Kafue Flats on RAMSAR List take away Zambia's sovereignty in respect of the Wetlands. (ii) Whether Section 25 (b)(b) allows a person to disturb a Wetland by drilling or tunneling in a manner that has or is likely to have an adverse impact on the Wetland provided that such person has written authorization of the Agency. (iii) Whether even assuming that no mineral exploration activities can take place in the Wetland the Application should be granted because the project site is not within the Wetlands. 14.15 The questions will be answered seriatim (i) Does the inclusion of the Kafue Flats, on the RAMSAR List take away Zambia's sovereignty in respect of the Wetlands. 14.16To answer this question, guidance will be sought from the - RAMASAR Convention. The preamble states, RECOGNIZING the Interdependence of man and his environment. CONSIDERING the fundamental ecological functions of Wetlands as regulators of Water regimes and as habitants supporting a characteristic flora and fauna especially waterfowl. -BS- BEING CONVINCED that Wetlands constitute a resource of great economic, cultural, scientific and recreational value, the loss of which would be irreparable. DESIRING to stem the progressive encroachment on and loss of Wetland now and in the future. RECOGNIZING that Waterfowl in their seasonal migration may transcend frontiers and so should be regarded as an international resource. BEING CONFIDENT that the Conservation of Wetlands and their flora and fauna can be ensured by combining for sighted natural policies with coordinated international action. 14.17 From the preamble of the RAMSAR Convention, it is clear that being a party to the RAMSAR Convention does not take away the sovereignty of state party over the Wetlands. 14.18What the Convention does it to emphasis the importance of the Wetland in terms of how it should be protected through National policies which must match with international actions. Therefore, though the Wetland is in Zambia, its use must be within International best practices and that is how Article 3.2 and 3.3 are applicable to Zambia. 14.19Therefore, though the Wetland is in Zambia, Zambia cannot ignore the international best practices in the Management of the Wetland. 14.20 Further abiding by those International practices does not mean that Zambia has surrendered or lost its sovereignty on the life of its Wetlands. (ii) Whether Section 25 (2) (b) allows a person to disturb a Wetland by drilling or tunneling in a manner that has or is likely -J36- to have an adverse impact on the Wetland provided that such person has written authorization of the Agency. 14.21 It was Counsel's submission that the exploration activities such as the one intended to be undertaken by the Appellant which will involve trenching and pitting (and may involve drilling may occur in a Wetland with authorization of the Agency after Minister consultation with the Board and the Minister responsible for water management. 14.22In opposing the application , Counsel for the respondent relied on Section 115 (2) of the Environmental Management Act No. 12 of 2011 which provides: "In determining a review application, the Minister - (b) shall have regard to the relevant environment policies, guidelines and standards published by the Agency; (c) shall have regard to, but is not bound by, the findings and recommendations of the person conducting the inquiry." 14.23 According to Counsel, the Minister 1n determining the application is guided by the relevant environmental policies, guidelines and standards published by ZEMA and that the Minister is not bound by the findings and recommendation of the person conducting the Inquiry. 14.241 have considered the arguments of both parties. In my considered view Section 25 of the Environment Act has been misinterpreted by the Appellants. What Section 25 envisages is that an Application will only be approved after written authority has been obtained from the Minister. However, this -J37- approval is not mechanical, implying that the Minister will approve any and every application forwarded to him. 14.25 In my considered view, Section 25 must be read together with Section 115 of the Zambia Environmental Management Act No. 11 of 2012. 14.26Therefore, in this case , the Minister took into consideration the expert submissions from department of wildlife decision. This was in line with the guidance given in the South African case of Fuel Retailers Association of Southern Africa Vs Director - General Consideration and Environment Mpumalanga Province and Others9 l and Warkworth Mining Limited Vs Bulga Milbrodole Progress Association Inc(10l (cited for persuasive purposes only). 14.27 In the light of the foregoing , Ground Two lamentably fails and is dismissed. 15.0 GROUND THREE 15.1 The Minister erred in law and fact when he ignored the fact that the nature of the proposed Gypsum Exploration is less disruptive and therefore easily remediable. 15 .2 It was Counsel for the Appellant's submission that the Minister should have allowed the proposed project because the Appellant seeks to carry out exploration of gypsum in the proposed site using simple methods of shallow exploration of easily excavated rock or soil. 15.3 It was Counsel's submission that the exploration to be employed will not be so disruptive to the environment and therefore easily be remedied. 15.4 It was Counsel's submission that the Appellant has demonstrated by way of its proposed Decommissioning and -J38- Closure plan" the rehabilitation works to be carried for two years to effectively restore the site. 15.5 It was Counsel's further submission that it was wrong for the Minister not to have taken into account the nature of the proposed Gypsum exploration when rendering his decision . Counsel referred the Court to the case of Nkongolo Farms Limited Vs Zambia National Commercial Bank Limited, Kent Choice Limited(4l. 15.6 In response, Counsel for the Respondent submitted that the Minister correctly declined the Application because he was correctly guided by the relevant environmental policies guidelines and standards published by ZEMA. 15.7 It was also Counsel's submission that with the guidance from the Department of National Parks and Wildlife, the Minister was on firm ground to uphold ZEMA's decision. More so that the EFB itself confirms at page 48 , paragraph 6 . 1.27 titled "Disturbance to Animal Life." 15.8 I have considered the arguments of both Parties in relation to Ground Three. 15.9 As a starting point, it is worthy to point out that when an Application is made to the Minister, the Minister does not make a decision in a vacuum. 15.10 The Minister pursuant to Section 115 (2) of the Environmental Management Act No. 2 of 2011 will have regard to the relevant environment policies, guidelines and standards published by the Agency. 15. 11 In this regard, the Minister took into consideration the advise given to him by ZEMA and Department of Wildlife (see page 107 of the Record of Appeal). -J39- 15.12 In my considered view, with the guidance from the Department of National Parks and Wildlife, the Minister was on firm ground to uphold ZEMA's decision. 15.13 As I say so, I must state that when an Application is made before a Minister, the Minister pursuant to Section 115 (2) (c) is not bound by the findings and recommendations of the person conducting the inquiry. 15.14 Further, it has to be stated that it does not matter the economical value of the project because the Minister is not guided by the economical value of the project. This was the guidance laid down in the case of the South African case of Fuel Retailers Association of Southern Africa Vs Director - General Conservation and Environment Mpumalanga Province and Others<9 l cited above. 15. lSFollowing the guidance of the two authorities , it 1s my considered view that this Court has considered the damage that would occur once the Appellants are granted permission to Mine . 15.16 Therefore, since it cannot be determined as to which part of the ecology would be affected until the damage happens , the Minister was on firm ground to have refused the Application . Ground Three also fails and is dismissed. 16. GROUND FOUR 16.1. The Minister erred in law and fact when he held that there are no management or monitoring activities that the Appellant could possibly propose that could be sufficient to convince him to permit the project. -J40- .,., _,. 16.2 It was the submission of Counsel for the Appellant that . Environmen tal Management measures which appear on Page and 85 of the record of Appe . 82 to 83 of the Record o ppe al and the Mitigation measures r· . t al are suf 1c1en ld h ve a . . . f A t s that the exploration act1v1ties wou appearing on page to remedy t e e ec ff h on the environment in the proposed project; more so th~t t e h Ramsar Convention does not prohibit mineral explorat10n or human interference in a wetland in line with Section 25 (25) (b) of the Environmental Management Act 2011. 16.3. It was Counsel's submission that the Minister erred when he held that there could be no management monitoring activities that the Appellant could possibly propose that could be sufficient or convince the Minister to permit the Appellant and that on the strength of the case of Nkongolo Farms Limited, the Minister ought to have taken into account the mitigation measures that were proposed. 16.4 In response , Counsel for the Respondent submitted that though the Appellant has provided for impact and mitigation on page 82 and 83, it was difficult for the Minister to envision the manner in which the monitoring and management activities would be carried out. 16.5. I have considered the arguments of both Parties. In my considered view the Minister was on firm ground when he declined the application because on the advice of ZEMA, the proposed mitigation measures were found to be insufficient and that as -J41 - opposed to the Appellant's submission, the proposed site was a protected wetland in line with the RAMSAR Convention. 16.6 It also must be stated that the Minister in this Application performed his statutory duty properly and cannot be stopped as guided in the case of Embassy Supermarket Vs Union Bank Zambia(11l where it was stated that: "Where a statute imposes a duty on a person, the person charged with the performance of the duty cannot be stopped from exercising his statutory powers." 16. 7. With that said, Ground Four also fails and is dismissed. 17 .0 CONCLUSION In light of what has been stated above all the four grounds of Appeal are dismissed with costs. Costs to be taxed in default of agreement. DELIVERED AT LUSAKA THIS 5TH DAY OF JUNE, 2024. S. V. Siloka HIGH COURT JUDGE -J42-