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R. Et Al v. Ex Parte Belize Alliance of Conservation Non Governmental Organizations (BACONGO)

An alliance of nine environmental organizations opposed the building of dam and associated works in Chalillo along the Macal River sought relief to quash the decision of the National Environmental Appraisal Committee  (NEAC) recommending conditional environmental clearance to the hydroelectric project and associated infrastructure and of the Department of Environment (DOE) granting such clearance. Both decisions were considered unlawful. The decision of the NEAC was unreasonable and failed to take into account relevant considerations while taking into account irrelevant considerations. The decision of the DOE, in turn, acted on a decision of the NEAC that was itself unlawful. The applicant contended that the EIA for the project was not accompanied by a copy of the newspaper on its submission to the DOE and informing the public and inviting them to inspect it and make comments if they desired. Furthermore, the DOE had failed to examine whether it complied with the previously agreed Terms of Reference and the EIA did not comply with various sections of the law and regulations, including deficient public participation.

Destacados

[33] The applicant has, however, chosen to come to Court to seek judicial review of the decisions it is complaining about.  I had earlier at the start of this judgment, stated that it has the requisite standing to bring these proceedings.  It is perhaps, easy to dismiss the applicant as a meddlesome busy-body, a nosey-parker with no material interest to protect.  I think, however, that the applicant must be commended for valiantly taking up the cudgel on behalf of the rest of the public to try to ensure by these proceedings, compliance and conformity of the project with the provisions of the Act and the Regulations.  It is the view of the Court, that this action by the applicant is indicative of a public spiritedness that deserves commendation.  There are, of course, others who would charge the applicant with an agenda of its own beyond concerns for the environment.  It is however, the view of the Court that the applicant, an umbrella alliance of non-governmental organizations for conservation, is exceptionally suited and positioned with sufficient interest to launch these proceedings.  That said, the applicant’s challenge must be set for the purposes of this review, in the context of the Act and the Regulations.  Indeed, it is the provisions of these instruments that the learned attorneys for the applicant, Mr. Dean Barrow S.C. and Ms. Lois Young-Barrow S.C.,  have invoked to impugn the decisions of the DOE in respect of the EIA for the project. 

[36] From an analysis of the provisions of the Act and the Regulations on EIA, it appears to me that section 20 of the Act and Regulation 26, provide the whole purpose and rationale of the EIA regime.  Together they constitute its raison d’être.  As stated in Environmental Law, by David Woolley, John Pugh-Smith, Richard Langham and William Upton (published by Oxford University Press 2000) at p. 676: “Environmental Impact Assessment is aimed at providing the competent authorities with the relevant information to enable them to take a decision on a specific project in full knowledge of the project’s likely significant impact on the environment.” There is therefore, no requirement that an EIA should provide or make the proposed project’s impact on the environment fail-safe, fool-proof, neutral or even minimal.  The EIA regime is to ensure that the decision-makers, with open eyes, are fully apprised of the possible impact of the proposed project on the environment.  Hence, the stipulation in both the Act and the Regulation, that every scheduled project requires an EIA.

[49] Therefore, I think there is some merit in the submission of Mr. Michael Young S.C. the learned attorney for the second respondent that there is some inconsistency or irreconcilability between the subsections of Regulation 20.  That is to say, there cannot be publication of the requisite newspaper notice until after the submission of the EIA to the DOE, and yet sub-regulation (2) is  saying that a copy of the newspaper containing the notice should accompany the EIA!  The sequencing between the submission of the EIA and, the requirement to have a copy of the newspaper accompany it, is not doable at the same time.  I believe, however, that teleologically, what Regulation 20 requires and means and intends as a whole, is the publication of the fact of submission of an EIA and notice of such submission to the public, with the necessary information.  And this, I am satisfied, on the evidence, was done by the developer, the second respondent, in this case.

[69] So in all, there are three specific provisions in the Act and the Regulations intended to express the public’s interest in EIAs and projects, undertakings or activities impacting on the environment.  But there are differences in intent and focus of these provisions vis-à-vis the public.  An analysis shows that they may be grouped into two sets: first, public consultation and participation on, and in the EIA process itself.  Section 25 of the Act and Regulation 18 address this set.  The second set, is public hearing, and this is the subject of Regulation 24.

[70] The intent and focus of Regulation 24 is not the EIA itself but on any undertaking, project or activity in respect of which an EIA is required.  That is to say on the project, undertaking or activity itself.

[75] What is clear from the evidence however, is that NEAC did vote for a public hearing on the project.  But this vital point seems to have been submerged under the confusion between public consultation and debate and a public hearing proper.  What was not sufficiently realized, was that the public hearing proper is not on the EIA of the project, but on the project itself.  And one of the three principal functions of NEAC is to advise the DOE of circumstances where a public hearing is desirable.  Evidently, the root of the confusion was when the public hearing should be held.  From the minutes there is reference to “a decision”.  It is not clear whether this refers to a decision of NEAC on the EIA or a decision on it by the DOE.  There was a failure, I think, to appreciate that public consultation on the EIA is a duty on the proponent (developer) of the project, and the desirability of a public hearing, is a function of NEAC to advise on or not.  This confusion or failure throttled the positive vote for a public hearing from coming through. 

[77] The project, Chalillo dam, undoubtedly meets by, any definition, all the requirements of Regulation 24(2) to warrant a public hearing.  Regulation 24 is not so much concerned with the EIA of the project itself as such; but rather the factors it states that are tied with or flow from the project.  Regulation 24 is silent on the procedure for the holding of a public hearing.  But, I think it would not be unreasonable for the DOE to announce and state the time and place for such a hearing on the Chalillo project.  This, I believe, will not be out with the provisions of either the Act or the Regulations but rather in conformity with them.  Perhaps, there is need to supplement the current Regulations to provide for EIA (Inquires Procedure) Rules, to govern the conduct of public hearing on projects or activities which must have an EIA because of their effects on the environment.  There are no rules at the moment.  But this is no bar to holding a public inquiry as clearly the Chalillo dam project would warrant, given the considerations specified in Regulation 24(2)(a)-(c), which are all, unquestionably, present  in the project.

[78] A public hearing is not the same as public consultation on and participation in the EIA of a proposed project.  It may well be that a public hearing may or may not affect the final outcome of the decision whether to proceed or not with the Chalillo dam project.  But the public, I think, has a right to be heard, consonant with the provisions of Regulation 24(2), if the inclusive and democratic process is to mean anything, especially on such a project as the Chalillo dam, with its admittedly wide-ranging ramifications.

Decisión

The Court found that there was material and substantial compliance with the law and regulations. Although the provisions on public hearings were overlooked, these were not so substantial to render the decisions flawed, tainted or unreasonable. While not quashing the decision, it ordered the DOE to hold a public hearing.  

País

Fecha de la sentencia

19/12/2002

Órgano resolutor

Supreme Court of Belize