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Sooknanan And Fishermen And Friends of The Sea v. Environmental Management Authority And Minister of Energy And Energy Affairs

A fisherman and a non-profit organization representing fishing communities sought to review the decision of the Environmental Management Authority to grant a Certificate of Environmental Clearance (CEC) to a petroleum company wishing to carry out a 3-Dimensional Seismic Survey in the Gulf of Paria without requiring an Environmental Impact Assessment. The claimants contended that the authority did not properly exercise its discretion nor take into consideration the impact and/or the possible effect on the fishing community and marine life. They argued that no extensive discussions or consultations with the fisherfolk had taken place and much of the information relied on by the authority was archaic and not available to the applicants or other stakeholders who would be affected by the decision.

Destacados

[26] The preamble to the EMA Act envisions a collaborative approach, with the EMA working in tandem with the public to protect the environment. In the instant case, conversely, this has turned into a battle between two self-styled heroes of the environment who are at loggerheads, with the Interested Party supporting the EMA.
[50] Not necessarily because certain information was considered and other information not makes does this make for a conclusion that the decision was irrational. Further there is no evidence to suggest that undue weight was given to one consideration in preference to another thereby amounting to ostensible illogicality or that the considerations led to a decision that lacked comprehensible justification. Therefore this Court finds no merit on the question of irrationality.
[51] Furthermore, it cannot be said that the EMA acted without procedural propriety simply because of the complaint made by the Applicants that there was a breach of natural justice because they were of the opinion that there was no consultation, which has been made clear, is premised on the need for an EIA.
[52] The submission by the Applicants is such that the duty to act fairly incorporates a duty on the part of the Respondent to give to those who may be adversely affected by the decision, namely the Applicants, an opportunity to be heard prior to the making of the decision. The Respondent says that the Applicants were in fact heard.
[53] What is fair differs in relation to the particular case. As stated by Lord Bridge in Lloyd v McMahon [1987] AC 625, the rules of natural justice are not engraved on tablets of stone and “The requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”
[58] In response to this the Applicants, relying on the case of Ulric ‘Buggy’ Haynes Coaching School v The Minister of Planning and Sustainable Development CV2013-05227, submit that the Court is not prevented from imposing such a duty of consultation on a decision maker. Further, the Applicants have lamented throughout their evidence and submissions about the lack of "meaningful" consultation with "meaningful" effect on the part of the EMA. The question that this Court is therefore obliged to pose is - what is meaningful in whose eyes and to whose standards?
[63] This court is satisfied that meetings held by Petrotrin with the fishing community demonstrated sufficient consultation in all of the circumstances of this case, particularly in light of this Court’s finding that such consultation was not mandated by the legislation, no EIA having been required by the EMA.
[64] Even in the absence of the requirement for an EIA, this court finds that, as per Berkeley v Sec of State for the Environment [2001] 2 AC 603, the Applicants were given "an opportunity to express [their] opinion on the environmental issues" by virtue of the three (3) consultative sessions held by Petrotrin.
[65] As per Stollmeyer J in the Atlantic LNG case; “It is sufficient if those affected, or likely to be affected, are put into a position that allows their views and opinions to be heard, to be ventilated fully, and that those views and opinions be considered properly in the decision making process. There is no requirement for ongoing public debate.”
[66] This Court agrees with the submission of the Respondent that consultations cannot go on forever. There must be an end at some point. Therefore the Court finds that those affected persons were indeed given an opportunity to have their concerns addressed and as such there was consultation although not mandated by legislation in this instance.
[73] The fact that the Applicants succeeded in their Leave Application, had an Interested Party apply to join the proceedings, overcame the challenge that the relief sought by them was otiose and engaged in 3 days of hearing and submissions as well as submissions on costs, all lead this court to find that this application was neither frivolous and vexatious, as referred to in section 7(8) of the JRA.

[74] This Court also finds that any challenge involving the environment to the extent and nature of this Claim must be clothed with public interest.

Decisión

The Court dismissed the claim as the authority was not mandated to consult once it determined there was no need for an EIA and the consultations carried out were deemed sufficient. However, no costs were ordered given the public interest of environmental claims. 

Fecha de la sentencia

03/07/2016

Órgano resolutor

High Court of Trinidad and Tobago