Sections 8 to 10 of the Environment Act 2000 answer three linked questions: who must report harm, who is responsible for it, and when it is unlawful.
Section 8 — the duty to notify
A person who becomes aware that unlawful serious environmental harm or unlawful material environmental harm is caused or threatened in the course of an activity carried out by that person, or over which that person has effective control, shall as soon as practicable give written notice to the Director of the circumstances in which the harm or risk of harm arose.
A corporation — a fine not exceeding K100,000.00.
A person other than a corporation — a fine not exceeding K50,000.00, or imprisonment for up to two years, or both.
Four elements define the duty:
- the harm must be serious or material — the two upper tiers described in environmental harm. Ordinary environmental harm under section 13 does not trigger section 8;
- it must be unlawful — that is, not permitted under section 10(1);
- it is enough that harm is threatened; you need not wait for it to occur; and
- the activity must be yours, or one you effectively control — the same concept as in section 9(2).
Section 8(3) to (5) — self-incrimination, and the use of the notice
(3) It is not a reasonable excuse to fail to give notice on the ground that the notice might tend to incriminate the person.
(4) A notice given under subsection (1) is not admissible in evidence against that person, or any other person carrying out the relevant activity, in any legal proceedings.
(5) But that does not prevent other evidence obtained because of the notice, or because of the giving of it, being admitted in proceedings against the person.
The notice itself cannot be used against you. Evidence obtained because of it — an inspection that follows, samples taken, records produced — can be. This is a use immunity for the document, not a derivative immunity.
The practical consequences: report promptly, because failing to is itself a serious offence; be accurate, because a false or misleading statement is a separate offence under section 114; and take legal advice at the same time as reporting, not afterwards.
Section 9 — responsibility for environmental harm
(1) Subject to subsection (2), a person who causes environmental harm is responsible for it.
(2) Where harm is caused or threatened at any place used in connection with an industrial or commercial activity, the occupier or person in effective control of activities carried out at that place shall be responsible — except where:
(a) the harm occurs as a result of force majeure or accident; and
(b) that person took all reasonable and practicable measures to prevent or minimise the harm.
Section 9(2) puts responsibility on the operator of an industrial or commercial site regardless of who physically caused the harm — a contractor, a subcontractor, an employee, or a visitor. The escape requires both limbs, and paragraph (b) is the same standard as the general environmental duty in section 7.
Because paragraph (b) demands proof that all reasonable and practicable measures were taken, force majeure alone is not a defence. Keep the evidence that would prove the second limb: risk assessments, maintenance and inspection records, bunding and containment, spill response equipment and drills, contractor management, and training records.
Section 10 — when harm is unlawful
An act or omission that causes, or is reasonably likely to cause, environmental harm is unlawful unless it is caused in the course of complying with an Environmental Code of Practice, or permitted to be done under:
(a) a condition of a permit; (b) an Environment Policy; (c) an Environment Protection Order; (d) a Clean-up Order; (e) an Emergency Direction; or (f) an Emergency Authorization.
The default is that harm is unlawful. Lawfulness comes only from one of those six sources — which is why an environment permit and its conditions matter so much, and why compliance with a Code of Practice is worth documenting.
Subject to section 112, it is a defence to a charge under sections 11, 12 or 13 where the person charged establishes that:
(a) the act or omission was lawful; and
(b) the person complied with the general environmental duty, either by complying with the relevant Environmental Code of Practice or in some other way.
Both limbs are required. Holding a permit is not enough by itself: the person must also have complied with the general environmental duty in section 7 — taking all reasonable and practicable measures to prevent or minimise the harm. Section 112 requires notice of the defence to be given on a charge of unlawful environmental harm.
Sections 11 to 13 — the harm offences
| Section | Offence | Corporation | Other person |
|---|---|---|---|
| 11 | Unlawfully causing serious environmental harm | K250,000.00 | K125,000.00 or 5 years’ imprisonment, or both |
| 12 | Unlawfully causing material environmental harm | K100,000.00 | K50,000.00 or 2 years’ imprisonment, or both |
| 13 | Unlawfully causing environmental harm by noise, dust, odour, electro-magnetism or litter; an unhealthy, offensive or unsightly condition because of a contaminant; or any other prescribed way | K20,000.00 | |
Sections 11 and 12 carry default penalties of K15,000.00 and K5,000.00 respectively, and section 13 a default penalty of K2,000.00 — which, with section 116 on continuing offences, is how ongoing breaches are addressed.
Each of sections 11(2), 12(2) and 13(2) provides that there is no requirement to prove that the person intended to cause the harm. These are strict liability offences subject to the section 10(2) defence and the general defence in section 111.
If harm occurs on your site
- Stop the source and contain it, so far as reasonable and practicable.
- Assess the tier — serious, material, or ordinary harm. Serious and material trigger section 8.
- Give written notice to the Director as soon as practicable, setting out the circumstances.
- Take advice at the same time — the notice is protected under section 8(4), but evidence obtained because of it is not.
- Record everything — times, volumes, weather, actions taken, people involved.
- Preserve the evidence of the measures you had in place, for section 9(2)(b) and the section 10(2) defence.
- Expect an order — an Environment Protection Order, a Clean-up Order or an Emergency Direction may follow.
- Do not give inaccurate information — section 114 creates separate offences about the provision of information.
Sources
- Environment Act 2000 — ss 7–13, 101, 103, 106, 111, 112, 114, 116
- Constitution — s 37(10) (protection against self-incrimination); Preamble, Fourth National Goal
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.