Eco-Sud and two others v Minister of Environment, Solid Waste and Climate Change and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens |
| Judgment Date | 04 July 2024 |
| Neutral Citation | [2024] UKPC 19 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0070 of 2023 |
[2024] UKPC 19
Lord Hodge
Lord Leggatt
Lord Burrows
Lord Stephens
Lady Rose
Privy Council Appeal No 0070 of 2023
Privy Council
Trinity Term
From the Supreme Court of Mauritius
Appellants
Alain Choo-Choy KC
Annabelle Misha Odile Ombrasine
(Instructed by RWK Goodman LLP (London))
1 st Respondent
Stephen Tromans KC
Sanjay Bhuckory SC
Peter Lockley
Anne-Sophie Jullienne
Sanjana Bhuckory
(Instructed by Citilaw Chambers (Mauritius))
2 nd Respondent
Patrice Doger de Spéville SC
Angélique A Desvaux de Marigny
(Instructed by Sheridans (London))
Heard on 5 March 2024
Under section 15(2)(b) of the Environmental Protection Act 2002 (“the EPA 2002”), the proponents of certain types of projects are required to apply for and obtain an Environmental Impact Assessment licence (“an EIA licence”), the issuance of which is approved or rejected by the Minister of Environment, Solid Waste Management and Climate Change (the “Minister”). The issue in this case is whether an environmental association, Eco-Sud, has standing to appeal the decision of the Minister to approve the issue of an EIA licence to Pointe d'Esny Lakeside Company Limited (“the Developer”) for a major construction project on land at Pointe d'Esny, Beau Vallon, Mauritius (“the Project”). Such appeals are brought in the Environment and Land Use Appeal Tribunal (“the Tribunal”). If Eco-Sud has standing then, in summary, the substantive issue which it wishes to raise before the Tribunal is whether the Minister should have decided not to approve the issue of an EIA licence because of the environmental impact of the Project on wetlands both within and in proximity to the development site.
The standing of those persons who may appeal against the decision of the Minister to issue an EIA licence is limited by section 54(2) of the EPA 2002. The version of section 54(2) of the EPA 2002 in force at the date of filing of Eco-Sud's appeal to the Tribunal provided that:
“Where the Minister has decided to issue an EIA licence, any person who –
(a) is aggrieved by the decision; and
(b) is able to show that the decision is likely to cause him undue prejudice
may appeal against the decision to the Tribunal.”
In a ruling dated 6 October 2021 the Tribunal (Mrs V Phoolchund-Bhadain, Mr Pravin K Manna and Mr Sujoy Busgeeth) held that Eco-Sud was not a person “aggrieved by the decision” within section 54(2)(a) and was not “able to show that the decision is likely to cause [it] undue prejudice” within section 54(2)(b). Accordingly, the Tribunal set aside Eco-Sud's appeal. It did not address the merits of Eco-Sud's appeal in its ruling.
In its judgment dated 18 July 2023, the Supreme Court (Hon SBA Hamuth-Laulloo, Judge and Hon M Naidoo, Judge) set out its interpretation of the requirements in section 54(2)(a) and (b) of the EPA 2002 and quashed the Tribunal's order. The Supreme Court remitted the case back to the Tribunal for it to decide whether Eco-Sud had sufficient standing in the light of the principles laid down in its judgment.
The Minister and the Ministry of Environment, Solid Waste Management and Climate Change (“the Ministry”) now appeal to the Board pursuant to section 81 of the Constitution of the Republic of Mauritius. The Minister and the Ministry contend that Eco-Sud lacks standing to appeal to the Tribunal under limbs (a) and (b) of section 54(2) of the EPA 2002. The first respondent, Eco-Sud opposes the appeal and the second respondent, the Developer, supports the appeal. The third respondent, the Ministry of Agro-Industry and Food Security, made no submissions on the hearing of the appeal.
Since 2002 Mauritius has been a contracting party to the Convention on Wetlands of International Importance especially as Waterfowl Habitat, known as the Ramsar Convention.
Article 2 of the Ramsar Convention provides that “[e]ach Contracting Party shall designate suitable wetlands within its territory for inclusion in a List of Wetlands of International Importance, ….” Mauritius has designated a mangrove forest at Pointe Jerome as a Ramsar-protected site (“the Ramsar Site”). The Ramsar Site, sometimes referred to as Pointe d'Esny Ramsar Site, is within 235 metres of the Project's development site.
In 2004 the government set up the National Ramsar Committee as a non-statutory advisory committee to assist in the domestic implementation of the Ramsar Convention. It is chaired by the Permanent Secretary of the Ministry of Agro-Industry and Food Security and comprises representatives of various Ministries and Departments.
Eco-Sud is a non-governmental organisation which is registered as an association under the Registration of Associations Act 1978. In accordance with its objects, as set out in article 3 of its Rules of Association, it is an environmental association which advocates, and takes measures, for the protection of the environment in Mauritius.
Eco-Sud's expertise and standing are evidenced, for instance, by its participation in a United Nations Development Programme (“UNDP”) project on “mainstreaming biodiversity”. One of the objectives of the UNDP's project was the “Development of Management and Action Plan for the Pointe d'Esny Ramsar site”. Another example of Eco-Sud's expertise and standing is its participation in a project in partnership with the Ministry of Ocean Economy, Marine Resources, Fisheries and Shipping. The project concerned the implementation of a “Voluntary Marine Conservation Area”, as part of efforts to restore the fauna and flora of the lagoon of Pointe d'Esny.
Eco-Sud has a considerable track record of undertaking work to preserve wetlands around Pointe d'Esny. For instance, (a) since 2012 it has organised regular planting activities (as well as clean-ups) in the Ramsar Site which furthers the protection of the mangroves there; (b) it has undertaken coral farming in and around the Pointe d'Esny lagoon; and (c) it has monitored the Pointe d'Esny lagoon as part of its “Lagon Bleu” project to further the protection of marine fauna and flora.
Eco-Sud has had considerable involvement in opposing the issuance of an EIA licence to the Developer. It made objections and representations as part of the procedure which preceded the decision of the Minister to issue an EIA licence. In making those objections and representations it not only relied on its own expertise and standing but also on an independent expert's report (“the Expert's Report”): see para 26 below.
On 15 June 2009, the Ministry published a report entitled “Environmentally Sensitive Areas Classification Report”, prepared by NWFS Consultancy, which identified the location of Environmental Sensitive Areas (“ESAs”) in Mauritius (“the ESA Study”). The ESA Study explained, amongst other matters, the crucial role which wetlands, sea grass beds, coral reefs and mangrove areas have in the ecosystem, and the benefits they generate for the human population, for instance, protection of biodiversity, pollution entrapment, protection of fisheries, nutrient dispersal and cycling, scientific discovery, recreation experiences, and cultural, intellectual, and spiritual inspiration.
The Expert's Report (see para 26 below) provides evidence that there are a number of wetlands near the Project site which were not identified in the ESA Study.
The Developer as the owner, or the person having the charge management or control of the Project, is, to use the statutory language in section 3 of the EPA 2002, the “proponent” of an “undertaking”.
The Project is for the construction of an inland residential development comprising a residential mix of 172 villas, 278 apartments and penthouses, 100 duplexes, 105 services lots with associated facilities. The Project site extends to 70.9 hectares.
The Project site is located behind the coastal road bordering the Pointe d'Esny lagoon, and within 235 metres of the Ramsar Site.
The Project site is not only near the Ramsar Site, but it also comprises several ESAs in the form of wetlands.
In or around November 2017, the Developer submitted its EIA licence application to the Minister.
On 4 December 2017, the Ministry published a notice for public inspection of the Developer's EIA licence application under section 20 of the EPA 2002.
On 21–22 December 2017, Eco-Sud filed comments with the Ministry in which it objected to the Developer's EIA licence application by filing with the Ministry its comments on the application. In summary Eco-Sud contend that there is an interconnection between the wetlands in the area of the Project site which will be disrupted by the Project with devastating consequences to the ecosystem of the Ramsar Site. Furthermore, Eco-Sud contend that the larger network of mangrove forest, lakes, ponds, and rivers, which they say has maintained the quality of the coral reefs in the nearby fishing reserve of Grand Port, will be adversely affected by the Project. Accordingly, in addition to the Project's adverse impact on the Ramsar Site, Eco-Sud contend that both the coral reefs and the fishing reserve will be adversely impacted. Finally, it is one of Eco-Sud's central objections that an EIA licence should not be granted in the absence of a proper assessment of the impact of the Project on the fragile ecosystem of Pointe D'Esny.
At a meeting held on 10 January 2018 between the Developer and Eco-Sud, Eco-Sud raised several issues with the Project,...
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