Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize and another

 
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[2003] UKPC 63

Privy Council

Present at the hearing:-

Lord Walker of Gestingthorpe

Sir Martin Nourse

Sir Andrew Leggatt

Appeal No. 47 of 2003
The Belize Alliance of Conservation Non-Governmental Organisations
Appellant
and
(1) The Department of the Environment
and
(2) Belize Electricity Company Limited
Respondents

From

THE COURT OF APPEAL OF BELIZE

[Delivered by Lord Walker of Gestingthorpe]

Competing Public Interests in Belize: The MRUSF project

1

Belize is bordered on the north by the Yucatan province of Mexico, on the east by the sea, and on the south and west by Guatemala. In the centre of the country are the Maya Mountains. Their north-western slopes give on to the Macal and Raspaculo river valleys, partly in the Chiquibul National Park. Much of this area is rainforest virtually unaffected by the impact of human activity since the age of the Mayas, about 500 years ago. The area is rich in rare fauna and flora; the mammals (variously classified as vulnerable, threatened or endangered) include jaguars, ocelots, pumas, and tapirs; there is also a rare form of crocodile; the birds include scarlet macaws. The area also contains a number of Mayan sites of great archaeological interest.

2

Belize is not a rich country. Tourism (and especially what is sometimes called eco-tourism) is important to its economy, so that Belize has an economic (as well as a cultural) interest in the preservation of these precious and fragile natural resources. However Belize has an energy problem. Part of its electricity supply is imported from Mexico. Domestic consumers pay exceptionally high rates for electricity. Demand for electricity is growing. Power-cuts occur from time to time. There is therefore a public interest in increasing the country's hydroelectric generating capacity, and the Macal River Upstream Storage Facility ("MRUSF") project aims to do that by the construction of a dam and associated works at Chalillo, upstream from the village of Cristo Rey and the town of San Ignacio.

3

There is already in existence a hydroelectric power station (built in 1994) at Mollejon, downstream from Chalillo. Mollejon is a run-of-river power station – that is, no water is impounded – and its efficient operation depends on a sufficient flow in the Macal River. The flow is however unreliable during the dry season (mid-February to mid-June). The new project would have a dual purpose: to generate some electricity in a new power station at the Chalillo dam, and (by impounding water behind the dam) to ensure a regular flow of water, at all times of the year, to the Mollejon power station.

4

The Chalillo dam is to be built of roller compact concrete, 49 metres high. When full it will impound an area of about 9.5 square kilometres but (because of the terrain) the impounded area will be a very irregular shape, extending about 20 kilometres up the Macal River and about 10 kilometres up the Raspaculo River. There will be a 7.3 MW powerhouse at the toe of the dam and a power transmission line (variously stated as 13 or 18 kilometres long) from the powerhouse to Mollejon. The original plan (decided on after feasibility studies first undertaken in 1992) was for work on access roads and other preliminary works to begin in March 2002; for the impounding of water to begin in June 2003; and for the powerhouse turbine-generators to be commissioned early in 2004. This programme has however been postponed by about a year, as explained below.

5

The MRUSF project has aroused controversy both inside and outside Belize. In Belize opposition to the project has been led by the Belize Alliance of Conservation Non-Governmental Organisations ("BACONGO"), the petitioner to the Board. It is an umbrella organisation of nine separate environmental and similar bodies established in Belize. It was incorporated in 1994 under the laws of Belize. It did at one time have an office in Belize, but it now operates from the offices of one or more of its constituent bodies. It was suggested by the respondents that it is funded largely from sources outside Belize.

6

The first respondent is the Department of the Environment ("the DoE"), a department of the government of Belize. The second respondent is Belize Electricity Company Limited ("BECOL"), the company which wishes to carry out the MRUSF project through its main contractor, a Chinese company. BECOL is a 95% subsidiary of Fortis Inc. ("Fortis"), a Canadian company. Fortis also owns 68% of Belize Electricity Limited ("BEL") which owns and operates the electricity distribution system in Belize.

Environmental Protection in Belize

7

Belize has environmental protection laws which, especially in relation to environmental impact assessment ("EIA"), are not wholly dissimilar from those in force in the United Kingdom (and indeed throughout the European Union). For present purposes the most important primary and secondary legislation is the Environmental Protection Act, passed in 1992 and since amended ("the Act") and the Environmental Impact Assessment Regulations 1995 ("the Regulations").

8

Part II of the Act establishes the DoE and sets out its functions. Part V (sections 20-23) deals with the requirement for EIA. Section 20 (apart from subsection (8) which is not material) is in the following terms:

"(1) Any person intending to undertake any project, programme or activity which may significantly affect the environment shall cause an environmental impact assessment to be carried out by a suitably qualified person, and shall submit the same to the Department for evaluation and recommendations.

(2) An environmental impact assessment shall identify and evaluate the effects of specified developments on -

  • (a) human beings;

  • (b) flora and fauna;

  • (c) soil;

  • (d) water;

  • (e) air and climatic factors;

  • (f) material assets, including the cultural heritage and the landscape;

  • (g) natural resources;

  • (h) the ecological balance;

  • (i) any other environmental factor which needs to be taken into account.

(3) An environmental impact assessment shall include measures which a proposed developer intends to take to mitigate any adverse environmental effects and a statement of reasonable alternative sites (if any), and reasons for their rejection.

(4) Every project, programme or activity shall be assessed with a view to the need to protect and improve human health and living conditions and the need to preserve the reproductive capacity of ecosystems as well as the diversity of species.

(5) When making an environmental impact assessment, a proposed developer shall consult with the public and other interested bodies or organizations.

(6) The Department may make its own environmental impact assessment and synthesise the views of the public and interested bodies.

(7) A decision by the Department to approve an environmental impact assessment may be subject to conditions which are reasonably required for environmental purposes."

Section 21 provides for the making of regulations. Section 22 provides criminal sanctions for failure to carry out an EIA required by the Act.

9

Regulations 4 and 5 of the Regulations are in the following terms:

"4.(1) In identifying the environmental impact assessment process under these Regulations, the relevant significant environmental issues shall be identified and examined before commencing and embarking on any such project or activity.

(2) Where appropriate, every effort shall be made to identify all environmental issues at an early stage in the environmental impact assessment process.

5. An environmental impact assessment shall include at least the following minimum requirements —

  • (a) a description of the proposed activities;

  • (b) a description of the potentially affected environment, including specific information necessary to identify and assess the environmental effect of the proposed activities;

  • (c) a description of the practical alternatives, as appropriate;

  • (d) an assessment of the likely or potential environmental impacts of the proposed activities and the alternatives, including the direct and indirect, cumulative, short-term and long-term effects;

  • (e) an identification and description of measures available to mitigate the adverse environmental impacts of proposed activity or activities and assessment of those mitigative measures;

  • (f) an indication of gaps in knowledge and uncertainty which may be encountered in computing the required information."

Regulation 7 and Schedule I make an EIA mandatory for certain categories of projects, including dams. Under regulations 11 and 14–17 the DoE is to be given notice when an EIA is or may be required. Draft terms of reference must be submitted to and approved by the DoE. Regulation 18 provides for public consultation during the preparation of an EIA.

10

Regulation 19 prescribes, in considerable detail, what is to be included in an EIA. Mr Clayton QC (for BACONGO) drew particular attention to the following requirements:

"(e) A description of the development proposed, comprising information about the site, the design and size and scale of the development, and its immediate surroundings;

(f) A description of the environment (local and regional);

(g) Significant Environmental Impacts. The data necessary to identify and assess the main effects which the proposed development is likely to have on the environment;

(h) A description of the likely significant effects, direct and indirect, on the environment of the development, explained by reference to its possible impact on:

human beings;

flora;

fauna;

soil;

water;

air;

climate;

material assets, including the cultural heritage and landscape;

natural resources;

the ecological balance; and

any other environmental factors which need to be taken into account;

(j) Environmental consequences of the project as proposed, and the alternatives, identifying any adverse effects that cannot be avoided if the action is implemented, all mitigation measures to be...

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