Our environment, our responsibility

The judgment of the Judicial Committee of the Privy Council (JCPC) in the matter of Eco-Sud and two others (Respondents) v Minister of Environment, Solid Waste and Climate Change and another (Appellants) (Mauritius) is a significant boost for the environment in Mauritius and a wake-up call for all those involved in real estate development, the licensing authorities, regulatory and/or adjudicating bodies on matters which affects the environment on this small island.

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In a 27 page judgment, the highlights of the decision of the JCPC can be summarised (and some of the below are extracts from the decisions of the JCPC) as follows:

1. Our Environment Protection Act 2002 has been enacted to:
   “provide for the protection and management of the environmental assets of Mauritius so that their capacity to sustain the society and its development remains unimpaired and to foster harmony between quality of life, environmental protection and sustainable development for the present and future generations; more specifically to provide for the legal framework and the mechanism to protect the natural environment, to plan for environmental management and to coordinate the inter-relations of environmental issues, and to ensure the proper implementation of governmental policies and enforcement provisions necessary for the protection of human health and the environment of Mauritius.”
2. The statutory purposes identified in the long title include:
   (a) the protection and management of the environmental assets of Mauritius;
   (b) fostering harmony between quality of life, environmental protection and sustainable development for the present and future generations; and
   (c) the provision of a legal framework and a mechanism to protect the natural environment including enforcement provisions.
3. An indication of the importance attached to the legislative purpose of protection of the environment can be discerned from section 2 of the EPA 2002 which, under the heading of “Environmental Stewardship”: “… that every person in Mauritius shall use his best endeavours to preserve and enhance the quality of life by caring responsibly for the natural environment of Mauritius.”
4. This obligation on every person in Mauritius remains in force without any amendment.
5. The determination of an appeal to the Tribunal (Environment and Land Use Appeal Tribunal – ELUAT) is by way of rehearing on the merits. Accordingly, the appeal to the Tribunal is an important limitation on the power of the Minister to decide to approve or reject the issue of an EIA licence. His decision to do so can be overruled by the Tribunal.
6. The courts in conducting statutory interpretation are seeking to ascertain the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision.
7. In Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51, [2005] 1 AC 684, at para 28 Lord Nicholls of Birkenhead also set out the requirement to have regard to the purpose of a particular provision, so far as possible. He said: “… the modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose.”
   
   
8. In addition, courts should seek to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature. In that respect absurdity is given a very wide meaning, covering, amongst other things, unworkability, impracticality, inconvenience, anomaly or illogicality: see R v McCool [2018] UKSC 23; [2018] NI 181, [2018] 1 WLR 2431, paras 23 and 24.
9. The JCPC considers that absurdity results if prejudice is confined to economic prejudice and prejudice to a private interest.
10. The absurdity can be demonstrated by the example of a proposed development in the centre of a vast remote idyllic wilderness all of which is in the ownership of the developer. The more remote the area and the larger its size then the less likely it is that there will be a person with an economic or private interest which has been unduly prejudiced by the Minister’s decision to approve the issue of an EIA Licence.

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