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Belize Tourism Industry Association v. National Environmental Appraisal Committee; Department of Environment and Belize Island Holdings Ltd.

A multinational cruise line company planned on building a cruise tourism centre in the South of Belize. The project application was approved by the Department of Environment (DOE) and National Environmental Appraisal Committee (NEAC) following a highly critical public meeting at which an Environmental Impact Assessment submitted by the defendant was reviewed and discussed. The claimant, a non-governmental representative organization, sought judicial review of the decision and the process leading up to the decision. It alleged that the Authorities did not comply with the EIA Regulations—specifically the publication and notice requirements contained therein—in the decision-making process. No relief was claimed and no attempt was made to stop the project. However, the Court considered it could entertain the question because of its significant public interest and importance. 

Destacados

[102] On a fair reading of the provisions of EIA Regulations it seems to me clear that reference to an EIA for public consultation must be reference to a completed, and not a partial or incomplete EIA (including any Consultation Report and/or Supplemental Information and/or Addenda). It seems to me that to find otherwise would seem to defeat the purpose of the public consultation process, if it is to be a meaningful exercise, and if it is to function meaningfully as part of the decision making process.
[103] In addition, and most importantly, it seems to me that it would be defeating the expressed objective of providing the opportunity for any affected or interested person, during the prescribed period, to make objections and representations to the DOE in relation to the effects of the proposed project activity on the environment.
[104] If the EIA is incomplete, and thereby such persons would not have, what might be important, supplemental information and material before them, because it was omitted, the effect would be that they would be deprived of the opportunity to comment on the very information which the process was designed to encourage them to comment on and to engage their participation. They might be denied the opportunity to comment and express their views on proposed project activity that may be harmful to the environment and which they may be affected by it as a result of such information being omitted. This court cannot imagine that by enacting the EI Regulations the legislature intended it to be so self-defeating.
[105] It may be, however, that the significance of the omitted information may be fact sensitive, and a determination of whether the public consultation provision has been defeated, may therefore turn on the facts and circumstances of the individual case. But as a matter of principle it is clear that reference to an EIA for public consultation must be considered from the start, without short-cuts, as reference to a completed EIA with all information and material available to the public for consultation.

[129] I have carefully looked at and considered the significance of the breaches which I have found and of the omitted information and all the facts and circumstances of the case generally with a view to determining what consequence should flow from my findings that the consultation process was somewhat short-circuited and shortcuts were taken, which ought not to have happened. I also considered how this court could send a message to ensure that should this situation arise in the future the NEAC would be discouraged from taking a similar course and send a clear signal that this court would frown upon this taking place. It is the hope of this court that it will not happen again in the future should such a similar situation arise. Specifically that a completed EIA with all information and material will in the future be made available to the public for consultation and that there should be full compliance with the statutory publication and notice requirements.

Decisión

The Court declared that there was a breach of Regulation 20 of the Environmental Impact Assessment Regulations in that the published notice in relation to the Addendum to the EIA did not appear the required number of times in two newspapers. The content of the published notice was also deficient as it failed to state the name of the Applicant, specify the times and the period during which the EIA could be inspected and the date on which the EIA shall be available to the public and failed to provide adequate time for the public to prepare its comments. However, the decision was not vitiated or quashed. In the opinion of the Court, though the non-compliance was neither trivial nor de minimis, nor can it be condoned or countenanced, it was not so flagrant a defiance of statutory obligation as to amount to bad faith and there had been substantial and meaningful consultation. 

País

Fecha de la sentencia

13/01/2016

Órgano resolutor

Supreme Court of Belize