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Talisman (Trinidad) Petroleum Ltd. vs. The Environmental Management Authority (EA 003 of 2002)
On 8 July 2002, a company applied to the Environmental Management Authority for a Certificate of Environmental Clearance in respect of a 3-D seismic survey over a 32 square kilometre portion of an area that fell within the Nariva Swamp (partly Wet Land and Wind Belt Reserve). The Environmental Management Authority indicated that it was unable to grant the certificate applied for on the grounds that the proposed activity occurs within a swamp which is designated for inclusion in the Ramsar List of Wetlands of International importance under the Convention on Wetlands and the area was to be designated an Environmentally Sensitive Area, considered a Prohibited Area under the Forests Act and declared as a Wildlife Sanctuary under the Conservation of Wildlife Act. The Appellant filed a Notice of Appeal against such refusal on the grounds that, among others, (i) the Ramsar Convention was subscribed to by the Government of Trinidad and Tobago but had not been embodied into national law by an Act of Parliament and therefore, was not enforceable; (ii) the Forests Act and the Conservation of Wildlife Act neither contemplate nor prohibit 3-D seismic surveys; and, (iii) the Appelant was not given an opportunity to be heard in order to show how its scientific and technical methodology could be carried out without unacceptable environmental harm (breach of the Appellant’s right to a fair hearing and the procedures in the CEC Rules).
Where there is evidence of possible negative environmental impact but the applicant in its application provided the Respondent with insufficient evidence that it can properly mitigate the negative environmental impact, then the Respondent must give the Applicant an opportunity to show that it can sufficiently mitigate the negative environmental impact. If this can be demonstrated by the applicant without having recourse to an EIA then he must be allowed to so demonstrate in accordance with the audi alteram partem rule. However, where this can only be shown by an EIA, which will often be the case, then the Respondent must, in accordance with Rule 4(1)(d) notify the applicant that an EIA is required and initiate discussions with the applicant in order to prepare the terms of reference (TOR). It is important to note that the applicant cannot of his own volition prepare an EIA, as the TOR of the EIA must be agreed to by the Respondent before the EIA is conducted.
When these principles of fairness are taken into account, it is clear that the Appellant, having been denied the opportunity to persuade or to show how it would be able to carry out the proposed activity without damaging the Swamp (especially in the absence of a prohibition against such activity), the decision to refuse in the circumstances would be fundamentally flawed.
While the procedure under Rule 4 does not specifically provide for an oral hearing by the Respondent, it is required by Section 16(2) of the Act in the discharge of its obligation to facilitate cooperation among persons and manage the environment in a manner which fosters participation and promotes consensus. And under Rule 4 1 (c) and (d) there is provision for the issue of a CEC without an EIA or requiring an EIA. The requirement for 24 an EIA involves a full assessment of the likely impact of the proposed activity and how, by proposed or other mitigating measures any risks of harm to the environment may be eliminated or reduced to a level that is acceptable. Further, Rule 5 provides an opportunity for consultation with the Appellant in respect of a TOR as well as, where appropriate, with relevant agencies (which would include the Forestry Division) and NGOs and having exhausted the available procedures as may be applicable, by Rule 7 it is empowered to either issue or refuse a CEC. So Rules 4 and 5 do involve in accordance with Section 16(2) the application of rules of fairness, before the decision to issue or refuse the CEC under Rule 7 is ultimately made.
That a decision-making body should not see relevant material without giving those affected a chance to comment on it and, if they wish, to controvert it is fundamental to the principle of law (which governs public administration as much as it does adjudication).
Quite apart from the Rules, there is in conformity with the need for participation under Section 16(2) of the Act, the provision relating to Public comment and the procedure thereunder, (See Section 28 of the Act). The general advantages of public participation are, inter alia, that it:- 1. improves the understanding of issues among all parties; 2. finds common ground and determines whether agreement 20 can be reached on some of the issues; 3. highlights tradeoffs that must be addressed in reaching decisions; and 4. improves the general understanding of the problems associated with a project, as well as the overall decision- making process.
The Environmental Commission determined that the Respondent’s reliance on the Ramsar convention, the prohibitions in the Forests Act, the Conservation of Wildlife Act, and the Wetland Policy was not right in law as a basis to support its decision to refuse to issue a CEC to the Appellant and that there was a breach of the Appellant’s right to a fair hearing and/or a procedural irregularity under Rule 4 of the CEC Rules.