Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment & Anor (Belize)  UKPC 6 (29 January 2004)
Privy Council Appeal No. 47 of 2003
Belize Alliance of Conservation Non-Governmental
(1) The Department of the Environment and
(2) Belize Electric Company Limited Respondents
THE COURT OF APPEAL OF BELIZE
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 29th January 2004
Present at the hearing:-
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Sir Andrew Leggatt
[Majority judgment delivered by Lord Hoffmann]
The Chalillo Dam
The judicial review proceedings
"The Court must ensure that the steps in the Act are followed, but it must defer to the responsible authorities in their substantive determinations as to the scope of the project, the extent of the screening and the assessment of the cumulative effects in the light of the mitigating factors proposed. It is not for the judges to decide what projects are to be authorised but, as long as they follow the statutory process, it is for the responsible authorities."
The statutory scheme
(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.
Approval of the project
The grounds of appeal
"Despite these shortcomings, the EIA was accepted for review by the NEAC but it was felt that the following information is being requested to assist with the revision process."
"The Chairman informed the member that at the last meeting, the NEAC had agreed to review the EIA with additional information."
"The member questioned the accuracy of the geological information. Sandstone is adequate for dam construction but dam design must consider this type of rock. In order to ensure that the dam does not crack, the foundation and sides would need to be anchored. [Mr Cho] felt that the NEAC should not accept the geology information as it is inaccurate. It was suggested that if clearance is granted, some areas of the dam will have to be grouted as a mitigation measure for sloping."
Other alleged deficiencies
"indicated that archaeological sites were limited to the following categories: minor Maya centres, quarry and lithic sites, sparse settlement areas and possible cave formations."
"these sites are undocumented and no archaeological information is known about the settlement and historical data of this region. It can only be postulated that the Mayas were intensively using the resources of the area as is suggested by the numerous ancient settlements along the riverine flood plain."
"It is absolutely clear that constructing a dam at Chalillo would cause major, irreversible, negative environmental impacts of national and international significance – and that no effective mitigation measures would be possible. The project would destroy the vast majority of a critical and unique habitat, threatening the last viable population of many vulnerable and endangered wildlife species in Belize and removing vital feeding grounds for migrating birds."
Conclusions on archaeology, wild life and rare plants.
"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."
Dissenting judgment delivered by
Lord Walker of Gestingthorpe
"But in my judgment the position is quite different if and when the applicant can satisfy a judge of the public law court that the facts disclosed by her are sufficient to entitle her to apply for judicial review of the decision. Then it becomes the duty of the respondent to make full and fair disclosure.
Notwithstanding that the courts have for centuries exercised a limited supervisory jurisdiction by means of the prerogative writs, the wider remedy of judicial review and the evolution of what is, in effect, a specialist administrative or public law court is a post-war development. This development has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration."
The Master of the Rolls then referred to the submission that it was not for the public authority to make out the applicant's case for him, and said,
"This, in my judgment, is only partially correct. Certainly it is for the applicant to satisfy the court of his entitlement to judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands."
"Bedrock at and below the valley floor is primarily granite ... the powerhouse should be founded on granite."
Para 2.7.3 stated,
"The powerhouse will be situated at elevation 356m (lowest point) and as such will be founded on granite. The granite will satisfy all foundation strength requirements ... granite bedrock is expected to predominate in the tail- race channel."
The EIA also included (after para 2.8) two maps taken from the Agra survey, numbered 2-1 and 2-2.
"A description of the development proposed, comprising information about the site, the design and size and scale of the development, and its immediate surroundings."
A dam which is liable to leak, and still more a dam which is liable to prove unstable, may have a more serious environmental impact (and fewer if any countervailing advantages) than a secure dam. The EIA (Part 1, para 2.4) identified dam safety as a key factor.
"which is characterised by a low cement content (100Kg/m3) and aggregate in which up to 5% fines would be permitted."
What the EIA describes as "conventional concrete" would be used only for the upstream face, the diversion, spillway, intake and powerhouse structures. The Board was not shown any evidence as to whether RCC construction would be appropriate for a dam built on sandstone. It is not a matter for the Board. But it is a matter highly relevant to the competence and adequacy of the EIA.
"The AMEC geology report and feasibility report are so filled with fundamental errors and flaws so as to render them useless as a basis for engineers to use in the design and the construction of the proposed dam. The mistakes made in the mapping of the Chalillo site and in the geological report would get a failing mark in an introductory geology class."
"The member questioned the accuracy of the geological information. Sandstone is adequate for dam construction, but dam design must consider this type of rock. In order to ensure that the dam does not crack, the foundation and sides would need to be anchored. The member felt that the NEAC should not accept the geology information as it is inaccurate. It was suggested that if clearance is granted, some areas of the dam will have to be grouted as a mitigation measure for sloping."
The minutes also record discussion with the BECOL representatives:
"A lengthy discussion on the geology of the site ensued. The member from GPD [Mr Cho] stated that although he disagrees with the naming and description of the rock type of the project area, he felt that the competency of the rock type that does exist there could withstand a dam. However, there would have to be changes to the engineering design to include proper grouting as well as other structural modifications to secure the dam.
One member stated that if the information on the geology is not accurate then this could raise concerns as to the credibility of the EIA preparers and the accuracy of other information contained in the document.
It was decided that the Chairman and the member from GPD would view the boring samples tomorrow and hold a teleconference with the geologists who conducted the EIA."
"the issues with respect to adjustments of the engineering design will be addressed in the ECP [Environmental Compliance Plan] ... The Chairman recommended that since the question on the geology did not really affect the fact that the dam could be constructed, that the NEAC should go ahead and make a decision."
Mr Cho was recorded as having
"... informed the NEAC that he had received the Swissboring data on the previous day and maintained the position that the identification of the rock formation in the EIA is inaccurate. He added that at the teleconference held earlier that day, it had been decided by the Chairman of NEAC, BECOL representatives and himself that an independent geologist would be hired to assess the rock formation."
This was the origin of what was to become the Cornec Report.
"These dams perform well if properly designed for the conditions and carefully built."
"There is no granite intrusive at the proposed Chalillo dam site.
The rocks are generally hard, silicified sandstones, siltstones and conglomerates with minor amounts of shales (average: 6.3%). Some of those shales are graphitic and could cause structural weakness in the right abutment of the dam.
There is no fault at the proposed Chalillo dam site.
There is a major fault located 550m north-west of the proposed Chalillo dam site (observed in the Macal riverbed at around 284585E/1864993N and 284697E/1865135N)."
The report raised concerns about karsticity, pointing to inconsistencies in the Agra/AMEC reports and referring to the "disastrous history of dam building within the same karstified cretaceous limestones of neighbouring Guatemala".
"The rocks at the proposed Chalillo Dam site are predominantly very hard, silica-cemented sandstones. There are no faults at the site of the dam axis, only minor fractures. However the history of movement along a major fault zone 550m away; the extent of karstification; the 6.3% of weak, graphitic shales (observed in the cores) should be factored into any final plans for the construction of the proposed Chalillo Dam.
Having obtained the report of the Inspector's team, the Inspector further recommends that: with the correct identification of rock type(s) in the area and detailed geology, BECOL shares this information with its Engineering (Contractors?) team. In the interest of the transfer of technology (TOT) and transparency this team should consist of national and international engineers. The national component should be public and private."
"Summary, page 2
The statement 'Some of those shales are graphitic and could cause structural weakness in the right abutment'. As pointed out to Mr Moore, the dam under consideration is a gravity type dam and hence the resultant load from the structure will be primarily vertical. On the right abutment there will be very little concrete mass hence very little vertical force as shown on the dam designs submitted to you. Moreover, the presence of graphitic shales was already factored into the design. Therefore, we recommend that the statement be removed. Inclusion of this statement would indicate that the dam design needs to be modified but, as we have explained before, we have fully factored the characteristics of all rock types in the design.
The statement 'there is a major fault' should be modified. In the detailed report, Page 9, it is explained that the fault has not shown any movement for some 65 million years. Can the statement be modified to say major inactive fault or include a qualifier on movement?
Major Fault, page 2 and page 8
Pages 2 and 8 of the report mention a major fault 500m North-West of the Chalillo Dam Site. It must be noted that mapping was not done that far downstream because geologic features that far downstream would not affect the dam foundation. It is obvious from the reports submitted that we did not map that far. AMEC did not show the fault in question on Figure 2-1 of 1999 Report because it did not seem to warrant the same prominence as other major faults such as Northern and Southern Boundary Faults and Cooma Cairn Fault. Major faults such as those just mentioned, affect the geology and/or topography of the areas they traverse. The fault in question being shorter and subparallel to the Cooma Cairn Fault fits the description of a 'splay fault', which are divergent smaller faults at the extremities of major faults. Our recommendation is that the word 'major fault' be removed or that the qualifiers above be included in the report."
"Some differences of opinion have arisen as to the classification of the rock in the area on which the dam is intended to be built. While the report refers to the rock as granite, some believe the rock to be sandstone. The mineralogical composition of much of the rock around Chalillo is similar to granite."
This was answered by Mr Holland on 14 May 2002:
"The sandstones at Chalillo are indeed derived from the erosion of the older granite of the Mountain Pine Ridge and are consequently made up of transported and sedimented mineral particles that previously comprised the granite. However, this similarity does not make the sandstone equivalent to granite. This mineralogical similarity is only as to composition and has nothing to do with the physical strength of the rock. It is like coal and diamonds: both are composed of the element carbon, the physical properties, however, being very different."
Similarly Mr Young (who is not a geologist) sought to equate sandstone and granite. Mr Sukhnandan continued what has become a recurrent theme, that it is all a matter of nomenclature.
"A further review of the rock at the dam site was undertaken by a team of geologists at the request of the Inspector of Mines of the [GPD]. A report of the review was submitted to the said Inspector of Mines."
The affidavit did not identify this as the Cornec Report or give any further indication of its contents. This was a matter of weeks before the resumed hearing by the Chief Justice of the judicial review application. Neither Mr Fabro nor anyone else at NEAC or the DoE saw fit to inform the Court about the detailed provisions of the ECP (which was only exhibited to an affidavit of Mr Young early in 2003), as to the outcome of the Cornec team's work, or as to the failure of the Inspector of Mines to produce a report within the time limit prescribed by the ECP. The Chief Justice seems to have been told nothing of these matters, and consequently his reserved judgment (given just before Christmas 2002) made no reference to them.
"In my view the NEAC approached their task in respect of the hydrology of the project with utmost care. The EIA provided sufficient and accurate information on which the NEAC could make their determination and on which they acted. There is no indication in the minutes of the meetings of the NEAC that the developers had to make any corrections to the information provided in the EIA. True they also provided additional information and scientific data but it is nowhere contended by the appellant that anything asserted in the EIA as to the geology of the dam area was changed due to the concerns of the NEAC expert. I therefore do not accept the submission that there was an absence of complete and accurate geological data when the NEAC met and voted for environmental clearance."
Nor could the Board, in its interlocutory judgment delivered on 30 July 2003, have given the inadequate and in some respects incorrect summary of the geological investigations which is contained in para 42 of the judgment.
"The DoE never received a Report by Jean Cornec, in 2002 but has now received the said Report ... [Mr Fabro then referred to reports from Dr Merritt and Mr Aziz]. After considering the Reports, the DoE was and is of the considered view that the geology of the MRUSF Project can support the dam." (Emphasis added)
This affidavit (which made no reference to consideration of alterations of the dam design) might be understood as implying that Mr Fabro had seen the Cornec Report early in 2003 (perhaps after it was finally signed off by the Inspector of Mines) and that it had received careful study.
"1. I make this affidavit further to my affidavit of 1 December 2003.
2. I first obtained a copy of the Cornec Report on 1 December 2003. I had not seen it before and I was not aware of it before I was informed about it by counsel for the First Respondent on 1 December 2003. I considered it, together with the comments of the Inspector of Mines and of BECOL and I was still of the view that the geology of the MRUSF area could support a dam and the associated structures.
3. The Cornec Report describes the rock type at the dam as sedimentary rock and not granite. When I granted approval on 5 April 2002 I was already convinced that the rock type was not granite. I believed it to be sandstone. I formed this view because of the firm opinion given by Mr Cho of the [GPD] (a member of NEAC) and because I knew the results of core sample tests that had been conducted by then."
Dissenting judgment by Lord Steyn