Legal News Bulletin -> Belize
Belize Alliance of Conservation Non-Governmental Organizations v. (1) The Department of the Environment and (2) Belize Electric Company Limited (2003)
Belize lies on the Caribbean coast of Central America, bounded by Mexico in the north and Guatemala in the south and west. Twelve hundred years ago Belize and its neighbouring areas supported a flourishing Mayan civilisation…2. Modern Belize has a population of some 260,000. It exports timber, and grows sugar and other tropical products on the small areas of land suitable for cultivation…There is a growing tourism industry which attracts cruise ships to the coastal cayes and visitors to the ruins and wild life in the forests. But the country is still relatively poor. It has no oil or other such natural resources and it has difficulty in meeting the increasing demand for electricity. 3. The sole supplier of electricity in Belize is Belize Electricity Limited (“BEL”), a subsidiary of Fortis Inc of Newfoundland. Until about ten years ago, it generated about half the electricity used in Belize in diesel-driven power stations, using imported oil. 4. In 1992 BEL decided to construct a hydro-electric power station to supplement the diesel generators. It built a plant on the Macal River at Mollejón. The Macal is a river which rises in the Maya Mountains to the south and flows north through narrow valleys to join the Belize River some 25 kilometres north of Mollejón near the town of San Ignacio. The generator has an installed capacity of 25.2 KW but it is a “run of the river” plant, that is to say, no water is impounded and generation is dependent upon the seasonal flows of the river. In the dry season there is little water in the Macal and therefore little generation of electricity…5. Fortis Inc has now embarked on a more ambitious hydro-electric scheme. It proposes (through another subsidiary called Belize Electrical Company Limited (“BECOL”)) to construct a 49.5 metre high dam further up the Macal River at Chalillo. This will hold back the waters of the Macal and its tributary the Raspaculo to create a lake which will extend about 20 kilometres up the Macal and some 10 up the Raspaculo. The object is to provide a permanent source of water which can enable both the Mollejón plant and a new 7.3 MW plant at Chalillo to generate electricity throughout the year. 6. The Chalillo dam proposal has aroused strong opposition from environmentalists, not only in Belize but in Fortis Inc’s home country of Canada, in the United States and indeed throughout the world. The dam will flood nearly 10 square kilometres of land on the border between the Mountain Pine Ridge Forest Reserve and the Chiquibul National Park. These are areas which Belize has designated for preservation as national environmental resources on account of the importance of the plants and animals which are found there. During the last century Central America has lost 70% of its forests to human exploitation but the Belize National Parks now provide a safe habitat for many indigenous species which are threatened with extinction elsewhere. The area has the highest density of the surviving big cats (jaguar, puma and ocelot) in Central America. Morelet’s crocodile (a rare species) lives in the rivers. Shy and secretive tapirs lumber through the woods. Gorgeous Scarlet Macaws, of which only about 1000 still exist anywhere in the world, nest in the trees by the river banks. …8. The area has also been only lightly explored for archaeological sites. Traces of Mayan settlement have been found in the valleys….10. In the litigation which has given rise to this appeal, a group of environmental organisations in Belize claim that the decision to build the dam was unlawful…. The allegation is that the department of the Belize government which approved the construction of the dam did not comply with the procedures required by law to be observed before such approval could be given…. The chief ground of challenge is that either the EIA did not comply with the provisions of the Act and Regulations and there had consequently been no EIA within the meaning of the Act or alternatively that, given the deficiencies of the EIA, it was unreasonable or irrational for the DOE to treat it as an adequate basis for approving the project.
Majority Decision (Lord Hoffman)
“The ground upon which the appellants submit that they can satisfy this demanding requirement is that the DOE postponed consideration of matters which should have been contained in the EIA. But, as their Lordships have observed, that only raises the question of what should have been in the EIA. Both the Chief Justice and the Court of Appeal cited with approval the remarks of Cripps J in the Land and Environment Court of New South Wales in Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402, 417: “I do not think the [statute] … imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation. I do not think the legislature directed determining authorities to ignore such matters as money, time, manpower etc. In my opinion, there must be imported into the statutory obligation a concept of reasonableness … [P]rovided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision maker and members of the public … to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations.” 70. Their Lordships also respectfully adopt these observations. It is not necessary that an EIA should pursue investigations to resolve every issue. This is not only common sense but contemplated by the terms of the Belize legislation itself. Thus regulation 5(f) says that an EIA should include an indication of “gaps in knowledge and uncertainty which may be encountered in computing the required information” and regulation 19(b), prescribing the form of an EIA, says it should contain a summary which highlights the “conclusions, areas of controversy and issues remaining to be resolved”.
Dissenting Judgment of Minority delivered by Lord Walker of Gestingthorpe
“In this most unsatisfactory state of affairs a few essential points are clear. The geology in the EIA was seriously wrong, as both Mr Fabro and Dr Merritt now accept….Here not even the most protracted and determined paper chase could have got at the true facts…119. I would therefore have allowed the appeal and quashed the DoE’s decision… to grant environmental clearance for the project. I would have done so on the ground that the EIA was so flawed by important errors about the geology of the site as to be incapable of satisfying the requirements of the EPA and the Regulations….121. The Attorney- General’s submissions call for respectful attention but they do not alter my view of what should be the outcome of the appeal. Belize has enacted comprehensive legislation for environmental protection and direct foreign investment, if it has serious environmental implications, must comply with that legislation. The rule of law must not be sacrificed to foreign investment, however desirable (indeed, recent history shows that in many parts of the world respect for the rule of law is an incentive, and disrespect for the rule of law can be a severe deterrent, to foreign investment). It is no answer to the erroneous geology in the EIA to say that the dam design would not necessarily have been different. The people of Belize are entitled to be properly informed about any proposals for alterations in the dam design before the project is approved and before work continues with its construction.”
