Our Environment Our Responsibility

The judgment of the Judicial Committee of the Privy Council (JCPC) in the matter of Eco-Sud and two others (Respondents) v Minister of Environment, Solid Waste and Climate Change and another (Appellants) (Mauritius) is a significant boost for the environment in Mauritius and a wake up call for all those involved in real estate development, the licensing authorities, regulatory and/or adjudicating bodies on matters which affects the environment on our small island.

In a 27 page judgment, the highlights of the decision of the JCPC can be summarised (and some of the below are extracts from the decisions of the JCPC) as follows:

1. Our Environment Protection Act 2002 has been enacted to:
   "provide for the protection and management of the environmental assets of Mauritius so that their capacity to sustain the society and its development remains unimpaired and to foster harmony between quality of life, environmental protection and sustainable development for the present and future generations; more specifically to provide for the legal framework and the mechanism to protect the natural environment, to plan for environmental management and to coordinate the inter-relations of environmental issues, and to ensure the proper implementation of governmental policies and enforcement provisions necessary for the protection of human health and the environment of Mauritius."
2. The statutory purposes identified in the long title include:
   (a) the protection and management of the environmental assets of Mauritius;
   (b) fostering harmony between quality of life, environmental protection and sustainable development for the present and future generations; and
   (c) the provision of a legal framework and a mechanism to protect the natural environment including enforcement provisions.
3. An indication of the importance attached to the legislative purpose of protection of the environment can be discerned from section 2 of the EPA 2002 which, under the heading of "Environmental Stewardship": "... that every person in Mauritius shall use his best endeavours to preserve and enhance the quality of life by caring responsibly for the natural environment of Mauritius."
4. This obligation on every person in Mauritius remains in force without any amendment.
5. The determination of an appeal to the Tribunal (Environment and Land Use Appeal Tribunal – ELUAT) is by way of rehearing on the merits. Accordingly, the appeal to the Tribunal is an important limitation on the power of the Minister to decide to approve or reject the issue of an EIA licence. His decision to do so can be overruled by the Tribunal.
6. The courts in conducting statutory interpretation are seeking to ascertain the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision.
7. In Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51, [2005] 1 AC 684, at para 28 Lord Nicholls of Birkenhead also set out the requirement to have regard to the purpose of a particular provision, so far as possible. He said: "... the modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose."
8. In addition, courts should seek to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature. In that respect absurdity is given a very wide meaning, covering, amongst other things, unworkability, impracticality, inconvenience, anomaly or illogicality: see R v McCool [2018] UKSC 23; [2018] NI 181, [2018] 1 WLR 2431, paras 23 and 24.
9. The JCPC considers that absurdity results if prejudice is confined to economic prejudice and prejudice to a private interest.
10. The absurdity can be demonstrated by the example of a proposed development in the centre of a vast remote idyllic wilderness all of which is in the ownership of the developer. The more remote the area and the larger its size then the less likely it is that there will be a person with an economic or private interest which has been unduly prejudiced by the Minister's decision to approve the issue of an EIA Licence.
11. The absurdity can also be demonstrated by the converse example of a proposed development in an area which has already been built-up. In a built-up area the environment may already have been adversely affected but it is more likely that a person's economic or private interest will be prejudiced.
12. The safeguard of an appeal process would be denied in relation to the remote idyllic wilderness in which a pristine environment may well call out for protection whilst the safeguard of an appeal process would be available in a built-up area where the environment may already have been adversely affected.
13. The Board considers that the example of the remote idyllic wilderness does not just demonstrate the absurdity of confining prejudice to economic prejudice and prejudice to a private interest. It also demonstrates that the purpose of the EPA 2002 of protecting the environment would be circumvented. The legislative purpose in introducing requirements as to standing is to be understood within the larger purpose of the EPA 2002 which is the protection of the environment. If prejudice were confined to economic prejudice or prejudice to a private interest, then in the example of a remote idyllic wilderness there would be no-one allowed to speak up on its behalf in an appeal to the Tribunal. Furthermore, the Tribunal would be powerless to protect the environment. The larger purpose of the EPA 2002 would be thwarted.
14. The JCPC agrees that a test of property rights or economic interests is not appropriate in an environmental context when considering standing under section 54(2)(b) of EPA 2002. Prejudice in section 54(2)(b) of the EPA 2002 is not confined to economic prejudice and prejudice to a private interest.
15. The question then arises as to what prejudice must be shown in an environmental context.
16. The answer is that prejudice, in the sense of harm, can be to an interest in the environment as well as being prejudice to an economic interest or to a private interest. Persons with a genuine interest in aspects of the environment that they seek to protect and who have sufficient knowledge of the subject will be able to show that a decision to approve the issue of an EIA licence is likely to cause them undue prejudice in relation to their interest in that aspect of the environment.
17. Finally, the Board expresses its concern that the construction of the development has continued despite the potential for the Tribunal to decide that: (a) Eco-Sud has standing; and (b) the Minister's decision to approve the issue of an EIA licence should be set aside. The environment is of vital importance to every person in Mauritius.
18. The obligation under section 2 of the EPA 2002, for every person in Mauritius to use their best endeavours to care responsibly for the natural environment, applies to all the parties to this appeal.
19. The obligation to care responsibly includes an obligation to respect the procedural safeguards enacted by the legislature. The procedural safeguard of an appeal to the Tribunal is potentially undermined by the developer attempting to pre-empt the Tribunal's decision by proceeding with the development and amounts to a failure to care responsibly for the natural environment. Furthermore, it is essential that the public have confidence in the environmental safeguards enacted by the legislature and proceeding with the development in these circumstances undermines confidence. It should also not be forgotten that, if the appeal to the Tribunal succeeds and the issue of the EIA licence is quashed, the developer could be ordered to restore the land to its original condition. The fact that the developer has carried on with the development while these proceedings are pending would not be ground for resisting such an order.

MY COMMENTS...

It is telling that the JCPC has made an additional comment after is has concluded that the appeal must be set aside. This should ring alarm bells for all those involved in real estate development, licensing authorities, regulatory and/or adjudicating bodies inasmuch it is more likely than not that irreparable harm would have been caused to our environment and any restoration could come too late (and that is if the developer has the means to restore if ordered to).

The legislator should consider interim reliefs of sufficiently robust nature in cases where there is no automatic stay during an appeal process. The challengers should seek and the Courts ought to seriously consider granting interim reliefs, albeit, with regular reviews, to ensure that the environment is not destroyed whilst the arguments are being raised and considered before the Courts/Tribunals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.