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Rethinking the Regulation of Environment Impact Assessment and Precaution in Mauritius

Published online by Cambridge University Press:  16 May 2017

Odile Juliette Lim Tung
Odile Juliette Lim Tung*
Affiliation:
University of the Witwatersrand, South Africa
*
ojltmru@gmail.com
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Abstract

As a small island developing state, Mauritius needs to manage its natural assets with a precautionary approach, especially as the tourism industry is one of the main pillars of its economy. While the precautionary principle has no statutory value in Mauritius, it serves as a guiding principle in environmental decision making. Since 1993, the assessment of impact has been mandatory under the Environment Protection Act (EPA) for major development activities, to avoid activities that may have a significant adverse impact on the environment and society. The local impact assessment procedure currently includes two categories of undertakings listed in the EPA, namely the environment impact assessment (EIA) and the preliminary environment report for undertakings with less environmental and socio-economic impact. This article examines the Mauritian EIA regulatory mechanism and seeks to strengthen the EIA process with a precautionary approach, to achieve more effective regulation and implementation.

Keywords

Environment Impact Assessment (EIA)preliminary environment reportEIA mechanismMauritiusregulationprecautionary approach

Information

Type
Research Articles
Information
Journal of African Law , Volume 61 , Issue 2 , June 2017, pp. 227 - 251
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Copyright
Copyright © SOAS, University of London 2017 

INTRODUCTION

With limited resources and a fragile environment, the Republic of Mauritius as a small island developing state (SIDS) needs to identify and implement precautionary measures in its environmental regulatory system.Footnote 1 The sustainable use of its terrestrial natural resources as well as the development of its marine territoryFootnote 2 require adequate environmental assessments, and monitoring of activities and development projects. Precaution marks a shift from post-damage control to pre-damage controlFootnote 3 of risks (or anticipatory measures), and requires the evaluation of activities to prevent possible harm to the environment and human health. Both the environment impact assessment (EIA) (as a procedure prior to decision making) and the precautionary approach (as a policy to inform / govern decision making) promote informed decision making and influence environmental outcomes.Footnote 4 An adequate identification and prediction of impact through an EIA enables the avoidance of environmental disturbances that may cost more to resolve after they have occurred than before they do so. It provides information about the likely impact of a developmental project and alternatives or mitigation measures needed to bring the project to fruition. Different stages of the EIA process may also involve issues of a scientific nature that may be subject to uncertainty. A precautionary approach should ensure adequate assessment of environmental uncertainties in a proposed undertaking and those environmental uncertainties should be given appropriate consideration or weight in reaching the final decision.Footnote 5 More importantly, in the context of environmental uncertainty and global environmental change, a precautionary EIA is priceless for vulnerable states such as SIDS.

The Mauritian regulatory framework for the prevention and control of pollution provides for an EIA process, so that the environmental implications of major activities are taken into account before being authorized. In 1991, the Environment Protection ActFootnote 6 (EPA) came into existence as a framework law with a holistic approach to environmental protection, taking into consideration integrated pollution controlFootnote 7 with an EIA mechanism.Footnote 8 This mechanism encompasses procedures that evaluate the environmental implications of activities before they are approved and enable better management and monitoring of their effects at the implementation stage. The EIA process is meant to examine activities that affect the environment, in order to avoid or minimize anticipated environmental effects.Footnote 9

In 2002, the EPA was amendedFootnote 10 to introduce additional types of impact assessment procedure, namely the preliminary environment report (PER) for undertakings with a lower environmental and socio-economic impact and the strategic EIA (SEIA) for undertakings likely to have a greater impact. While the SEIA was repealed in 2008, the requirement for a PER still applies for specifically listed activities, with a simpler procedure than that applicable for those activities requiring an EIA licence. The environment minister is competent to grant an EIA licence and to approve a PER to ensure that environmental impact is assessed for major undertakings listed in the fifth schedule of the EPA. The ministry responsible for the environment (then called the Ministry of Environment, Sustainable Development and Disaster and Beach Management - MoE) drafted guidelines to assist proponents of undertakings.Footnote 11 While a project or activity listed in the fifth schedule of the EPA cannot be carried out without an EIA licence or a PER, listed undertakings may be classified as exempt undertakings, subject to faster procedures. However the environment minister may require an EIA licence or a PER with respect to unlisted undertakings.

More than two decades after the introduction of the EIA process in the Mauritian environmental regulatory system, a number of questions arise with respect to the effectiveness of the EIA process and practice. How far does the local EIA mechanism include and prioritize precaution? Do impact assessment legislation and policy minimize any negative impact on biodiversity and environmental degradation in general?Footnote 12 Are public involvement and participation sufficient in relevant decision making in developmental projects? Does decision making take enough consideration of mitigation, enhancement measures and alternatives? This article examines the Mauritian EIA framework, and the advance and implementation of precaution in the EIA process to strengthen the effectiveness of this assessment mechanism. The article first provides an overview of the precautionary principle and EIA. It then examines the implementation of precaution at the pre-approval stage of the EIA process before dealing with precaution at the decision making and post-approval stages.

THE PRECAUTIONARY PRINCIPLE AND EIA

Precaution is the leading policy approach that has emerged to guide environmental decision makers confronted with inadequate information,Footnote 13 especially with respect to EIAs. Advancing precaution in environmental management and decision making nevertheless often hinges on whether the precautionary principle is a mandatory consideration for decision makers and proponents.

The precautionary principle

The precautionary principle emerged from concerns regarding treatment of the environmentFootnote 14 in the 1970s in Germany. It has since been considered a legal principle or an approach to guide decision makers in different countriesFootnote 15 and at the international level.Footnote 16 The principle was adopted by the UN General Assembly in 1982 and was reaffirmed in 1990 by European states in the Bergen Ministerial Declaration on Sustainable Development.Footnote 17 The precautionary principle has been best known as principle 15 of the 1992 Rio de Janeiro Declaration (Rio Declaration),Footnote 18 which states that “in order to protect the environment the precautionary approach shall be widely applied by States according to their capabilities”. The declaration further lays down that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing appropriate measures to prevent environmental degradation”.Footnote 19 This definition of the precautionary principle is insufficiently precise for application purposes and leaves the application of precaution to the discretion of states. The 1998 Wingspread Statement on the Precautionary Principle provides the following definition: “[w]hen an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically”.Footnote 20 This statement extends the application of the precautionary principle to harm to human health and states that precautionary measures should be taken even if there is scientific uncertainty.

In 2005, the UNESCO World Commission on the Ethics of Scientific Knowledge and Technology adopted the following working definition of the precautionary principle: “[w]hen human activities may lead to morally unacceptable harm that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that harm by virtue of the precautionary principle”.Footnote 21 This working definition brings a moral dimension to the principle without specifying the moral standards to be applied and may be left to subjective interpretation in practice. While precaution is the leading policy approach regarding environmental decision making with inadequate information,Footnote 22 the legal status of the precautionary principle in international law is widely debated and it has not been incorporated in all domestic legislation.Footnote 23 The nature of the concept of precaution is still being debated, in particular as to whether it should be accepted as a legal principle in addition to being a sound policy approach.Footnote 24 Some have argued against the recognition of precaution as a “principle” of environmental law, which would imply a broad obligation to apply precaution in decision making, in favour of viewing precaution as merely one particular policy or management “approach” to dealing with uncertain threats.Footnote 25 Although there is discussion about the meaning of the expressions “principle” and “approach” concerning the precautionary principle, in general “principle” is employed as the philosophical basis of the precaution and “approach” as its practical application.Footnote 26 At a domestic level, if there is no specific legislation on the precautionary principle, it is argued that a precautionary approach is the minimum rationale to be applied in the interests of the environment and human health, thus constraining activities of the public.

The precautionary principle and EIA in Mauritius

At the international level, Mauritius does recognize the precautionary principle in bilateral and multilateral treatiesFootnote 27 to which it is a party, and even invokes the precautionary principle to prohibit ships with radioactive cargo from entering its territorial waters.Footnote 28 However, the precautionary principle does not have statutory value in Mauritius and it mainly serves as a guiding principle in environmental decision making.Footnote 29 Although environment related policies are not a source of law per se, they can be said to have inspired environmental regulation to some extent in the country.Footnote 30 National environmental policies and strategies are said to have adopted approaches that are based on the precautionary principle, the prevention principle and the “polluter pays” principle.Footnote 31 The 2013 Maurice Ile Durable (MID) Policy, Action Plan and StrategyFootnote 32 goes a step further than former policies and strategies by specifying its understanding of these principles as guiding principles. As a MID guiding principle, the precautionary principle is defined in accordance with principle 15 of the Rio Declaration, which states that “in the case of credible threats of serious or irreversible damage, a lack of full scientific certainty shall not be used as a justification to postpone cost-effective measures to prevent impacts or to condone activities that exacerbate a problem”. MID guiding principles also include a science-based governance through the use of best science and data for effective and informed decision making.Footnote 33 The rationale of the precautionary principle as an overarching guiding principle in Mauritius requires that public policy includes measures to avoid or reduce unacceptable norms that may result from human activities.Footnote 34

An EIA procedure of modelling an activity before its approval is an important vehicle by which precaution can be implemented in an environmental regulatory system. As a contracting party to the Convention on Biological Diversity (CBD), Mauritius is required to introduce appropriate procedures requiring EIA for proposed projects that are likely to have significant adverse effects on biological diversity, in order to avoid or minimize those effects.Footnote 35 Consequently, projects are required to be assessed in relation to feasible alternatives and all potential findings should be acknowledged in an EIA report. Precaution must be applied concerning development proposals with an uncertain environmental impact and possible types of scientific uncertainty should be reflected in the EIA report. Potential harm or damage to current generations, or public goods and harm to future generations resulting from activities must be identified and prevented.Footnote 36 Responsibility to establish that the proposed activity will not (or is very unlikely to) result in significant harm lies with the proponent of the activity. Reversing the burden of proof for the proponent of the proposed activity to prove no significant harm would also be a precautionary measure, reflecting the idea of the “polluter pays”.Footnote 37

Mauritian case law did not examine the precautionary principle until a 2011 case regarding the rejection of an EIA application to build a coal-fired power plant on the basis of the precautionary principle.Footnote 38 In this case, MoE representatives argued that the precautionary principle is inherent to all applications for an EIA licence.Footnote 39 While the precautionary principle is generally understood to mean that one should proceed cautiously where there is reason to believe harm may result from a proposed activity, there remains considerable doubt and disagreement about its actual content or meaning.Footnote 40 In this case, the then Environment Appeal TribunalFootnote 41 (EAT) acknowledged that the principle had not been incorporated into domestic law but was a sound approach for considering the concept of environmental stewardship.Footnote 42 The EAT supported its understanding of the application of the precautionary principle through its application by foreign courts.Footnote 43 The Australian New South Wales Land and Environment Court held that the principle would apply when two prior conditions exist: a threat of serious or irreversible damage; and a lack of scientific uncertaintyFootnote 44 as to the extent of possible damage. The application of the precautionary principle and the need to take precautionary measures are triggered when these two prior conditions are satisfied.Footnote 45 These two conditions are cumulative and, once they are present, a precautionary and proportionate measure may be taken to avert the anticipated threat of environmental damage.Footnote 46 When these two conditions are present, the burden of proof shifts to the proponent to show that the threat of environmental damage is negligible. The New South Wales court also held that the precautionary principle is not to be used to avoid all risks. The principle does not apply in the case of a threat of negligible environmental damage.Footnote 47 There is a responsibility to protect the public from exposure to harm when scientific investigation has found a plausible risk, and this can only be relaxed if further scientific findings provide evidence that no harm will result.Footnote 48 The presiding magistrate of the EAT stated in the CT Power case that, by virtue of the precautionary principle, activities are not permitted until uncertainties regarding the identified impact are sufficiently low that a decision may be made.Footnote 49 He considered that the precautionary principle could not be applied in this case since there was no scientific uncertainty regarding the effect of coal burning and its likely damage to the environment in other countries as well as in Mauritius.Footnote 50 The EAT concluded that an EIA licence should be granted, subject to conditions to address the identified impact after a careful balancing of the different interests at stake.Footnote 51

In the absence of a statute-based precautionary principle but with a weak formulation of this principle in environmental policies in Mauritius, the precautionary approach is the minimum rationale to be applied in the interests of the environment to constrain activities of the public and of independent actors. It is argued that a strong precautionary approach at earlier stages (pre-approval and approval) of the EIA process will require fewer precautionary measures at later stages.

PRECAUTIONARY APPROACH AT PRE-APPROVAL STAGE OF THE EIA PROCESS

Before 1993, development projects in Mauritius were mainly assessed on grounds of technical and economic feasibility, with their potential environmental, social and health impact rarely examined rigorously. Consequently many activities approved before 1993 became operational without an EIA.Footnote 52 In 1993, impact assessments became mandatory for listed undertakings, to avoid activities with a significant adverse impact on the environment and society.Footnote 53 The EPA provides a standard procedure for an EIA or PER to be submitted to the MoE. The Environment Assessment Division has a major role in the control of developmental works and in ensuring that environmental impact is adequately addressed in the EIA process.Footnote 54 The following paragraphs discuss a better precautionary approach to the EIA process, with respect to the scope of undertakings requiring an EIA, the screening requirements of a proposed undertaking and the use of mitigation measures and alternatives. It is argued that a precautionary approach also includes the avoidance of adverse impact and informed decision making through better public participation.

Review of the scope of undertakings requiring an EIA

Initially, only major development project activities required an EIA. Additional forms of impact assessment, such as the PER and SEIA, were introduced in 2002. It is necessary to review the listed undertakings requiring an EIA and the requirement for an SEIA, since an SEIA has not been required for any undertaking since 2008.

Review of listed undertakings

An activity or project other than an undertaking does not require a PER or EIA licence. Listed undertakings require an EIA or a PER, while unlisted undertakingsFootnote 55 may require an EIA or PER at the discretion of the environment minister.

Undertakings that require an EIA licence are listed in part B of the fifth schedule of the EPA.Footnote 56 Section 18 of the EPA lists the requirements for an EIA licence. An assessment of the possible social, economic and cultural effects of the undertaking is also required.Footnote 57 The Environment Assessment Division uses EIA guidelines as well as sectoral checklists to review EIAs in different sectors.Footnote 58 For undertakings to be operated on the island of Rodrigues,Footnote 59 all procedures for an EIA licence must be carried out in accordance with the EIA procedures on the main island of the Republic of Mauritius (mainland Mauritius). The Rodrigues Regional Assembly may, after consultation with the Rodrigues Environment Committee, make regulations applicable to Rodrigues for categories of undertakings, projects or activities which need an EIA licence.Footnote 60 The island's chief executive assists in reviewing an application for an EIA licence regarding a proposed undertaking in Rodrigues.Footnote 61 While the EIA mechanism applies to other dependenciesFootnote 62 of Mauritius, to date no EIA has been carried out in any dependency other than Rodrigues.

A PER is required for activities on a lesser scale, as per part A of the fifth schedule of the EPA, in accordance with relevant policy or environmental guidance that is published in respect of an undertaking.Footnote 63 Undertakings needing a PER are generally considered to have fewer consequences for the receiving environment, human health and property.Footnote 64 A PER application is required to conform with policies or relevant environmental guidance and PER guidelines provided by the MoE.Footnote 65 Undertakings concerning Rodrigues that require a PER must apply in accordance to the procedures provided for mainland Mauritius.Footnote 66

Unlisted activities and projects that are not specified as an undertaking in the fifth schedule of the EPA do not automatically need to fulfil the requirements for an EIA or PER.Footnote 67 However, the proponent of such an activity may be required to submit an application for a PER or for an EIA licence at the discretion of the environment minister.Footnote 68 Legislation was enacted in 2006 to promote investment, by enabling businesses to start operations within three working days of applying for a business permit, based on self-adherence to guidelines with ex post control.Footnote 69 However this fast-track procedure may not promote a precautionary approach regarding environmental protection.

Furthermore, in the light of the conversion of agricultural land for development purposes, faster procedures were also adopted from 2011 with respect to EIA licence applications for persons registered under the Land Productivity Enhancement Scheme (LPES).Footnote 70 Under the Planning and Development Act (PDA), the LPES Technical Committee reviews applications for an EIA licence with respect to projects under the scope of the LPES.Footnote 71 Any person wishing to benefit from facilities available under the LPES relating to land use development is required to register under the LPES.Footnote 72

Since 1993, the threshold for triggering the EIA process in Mauritius has been the significance of the environmental impact of development projects, although this may be a subjective threshold. It may also not encompass projects where there is uncertainty regarding the environmental impact, especially where insufficient information is available concerning non-negligible environmental harm. It is recommended that the EIA requirement be triggered for proposed projects or activities where there is uncertainty regarding the environmental impact.Footnote 73

In order to remedy the subjectivity of the threshold of significant environmental impact for the EIA process to be triggered, the following options are proposed. First, a catch-all category is needed for undertakings requiring an EIA by virtue of size, location or nature. The current categorization of undertakings may miss proposed projects that do not fall within existing EIA categories.Footnote 74 Secondly, activities and projects that are not listed but need to be notified and recorded by the director of the Department of Environment (DDoE) should be identified. Thirdly, coastal developments involving hotel development should require an EIA whatever their size, while it should be compulsory for development to be set back more than 200 metres in environmentally sensitive areas.Footnote 75

At best, the use of a risk based approach would be preferable to determine if activities need an EIA based on their nature, size, location and impact, instead of categories based on the listing and size of undertakings. Using an environmental risk based approach early in the EIA process would help to ensure that any key impact is identified right at the start and may be examined in more detail later in the EIA process. An environmental risk based approach would involve better precaution and improve the level of information and knowledge regarding risks during the EIA process.

Necessity for a strategic EIA

While an EIA essentially reacts to proposed developments and their environmental impact, an SEIA can be more proactive by facilitating earlier consideration of environmental impact and the examination of a wider range of potential alternatives and mitigation measures.Footnote 76 The SEIA is often referred to as a “sustainability-led” process, better suited to the consideration of cumulative impact at a landscape rather than site-specific scale.Footnote 77 There are also voluntary CBD guidelines for incorporating biodiversity related issues into EIA legislation and / or processes and into strategic environment assessment, which can help provide a better framework for the SEIA.Footnote 78

A form of SEIA was introduced in 2002 as a process to identify and address the environmental and socio-economic consequences of policies, plans and programmes prior to decision making.Footnote 79 An SEIA was required for major policies with strategic importance for Mauritius and Rodrigues.Footnote 80 The DDoE was competent to classify a project or undertaking within the EIA / SEIA categories but was not authorized to declassify an activity from the SEIA category. Since its introduction in Mauritius, an SEIA has been conducted in only two instances: for the identification of potential sites for marinas, water-ski lanes and bathing areas,Footnote 81 and for the Multi-Annual Adaptation Strategy of the sugar cane sector.Footnote 82 The Environment Protection (Amendment) Act 6 of 2008 repealed the SEIA, although strategic impact assessment in the EIA process would help provide the appropriate framework for project specific assessments to be conducted. It is strongly recommended that local projects with a serious impact, such as the development of “smart cities” across mainland Mauritius, be subject to an SEIA.Footnote 83 Currently, the development of a “smart city” requires an EIA in accordance with guidelines drafted by the Board of Investment (BOI) for interested developers.Footnote 84

EIAs need to be conducted more widely to encompass an SEIA (with a precautionary approach), since there may be numerous causes of environmental harm. Such causes may be interrelated while spatially and / or temporally distant from their effects.Footnote 85 It has been argued that the local EIA process should include the requirement for an SEIAFootnote 86 for policies, plans and programmes, as well as high level projects in the EPA, for the following reasons. First, issues related to the cumulative effect of different projects, greenhouse policies and sustainable development are considered to be better addressed at the SEIA level, since the inter-temporal nature of their impact is difficult to comprehend within the EIA of a single project.Footnote 87 Secondly, an SEIA would be necessary regarding environmental assessment policies and guidelines to address the impact of developmental works or projects on vulnerable environmental assets or areas. Such planning guidelines are of utmost importance, since coastal development projects have a serious impact on an already pressurized coastal zone. Thirdly, transboundary impact is not currently assessed under the current EIA process and a wider range impact assessment, preferably an SEIA, would suit the assessment of transboundary impact better. Although Mauritius is a SIDS sharing no physical borders with any other country, it needs to consider shared marine / international waters and the impact of its activities on these waters.Footnote 88 Recent discoveries of oil and natural gas by deep water drilling in Mauritian territories in the western Indian Ocean region have not yet been confirmed.Footnote 89 Should these discoveries be confirmed, it is strongly recommended that the exploitation of oil and natural gas in these territories be subject to an SEIA including an assessment of transboundary impact.

An improved SEIA is necessary, taking into consideration these recommendations and voluntary CBD guidelines incorporating biodiversity related issues.

Basic screening and scoping requirements

Screening and scoping are part of the Mauritian EIA mechanism and are carried out at the early stages of a project. However, they do not trigger the requirement for an EIA or a PER since the categories of undertakings needing an EIA or a PER are already listed in the fifth schedule of the EPA.

Applicable procedures for basic screening and scoping in the EIA process are as follows. At least three months before submitting the application for an EIA licence, the proponent of an undertaking must inform the DDoE regarding the proposed undertaking, with an outline and details regarding its location, nature and scope. A copy of the document is sent to ministries involved in assessing the undertaking and a site visit is then effected by the MoE, the EIA Committee, the respective consultants for the EIA report and the proponent of the undertaking. Legislation needs to specify qualification criteria for the selection of EIA consultants,Footnote 90 since there are no clear criteria for the registration of consultants eligible to prepare EIA reports.Footnote 91 The DDoE may impose the terms of reference for an EIA report, the fields of study to be covered, and the consultants’ expertise and qualifications.Footnote 92 However, there are capacity constraints, to the extent that there is a lack of technical experts to undertake EIA studies.Footnote 93 One way of overcoming capacity constraints may be to introduce a certification scheme and training for environmental assessment practitioners in the country.Footnote 94

Screening and scoping are considered to be critical stages in the EIA process, in line with the CBD guidelines on a biodiversity inclusive EIA to determine any significant impact and issues to be studied early in the project cycle. Better precaution would imply having minimum scoping requirements for an EIA to help proponents prepare terms of references for impact studies to achieve a better quality of EIA reports.Footnote 95 Recommendations could then be included in the design and cost benefit analysis without causing major delays or increased design costs. Further, basic scoping requirements should also be required for the preparation of a PER application. A strong precautionary approach at the screening and scoping stages reduces the need for a precautionary approach and measures at later stages. While there are sectoral guidelines for some undertakings, it is argued that minimum scoping requirements for all undertakings requiring impact assessment are necessary in the EIA mechanism, to ensure uniformity in the contents of EIA and PER reports.Footnote 96

Exempt undertakings

Exempt undertakings are listed undertakings for which the normal EIA / PER application procedures are not applicable, in view of their urgency for the national or economic development of Mauritius.Footnote 97 Such an undertaking still needs to submit an application for an EIA licence to the DDoE who may refer it to the EIA Committee for comments or recommendations. The committee may then refer the application with relevant comments to the environment minister for decision making purposes.Footnote 98 The application for an EIA licence regarding an exempt undertaking is not subject to the public inspection stage, although the DDoE may request comments from public departments, any enforcing agency or non-governmental organization (NGO). The EIA report for the exempt undertaking is then referred to the EIA Committee with any comments received.Footnote 99 Where the environment minister has approved an EIA report regarding an exempt undertaking, the DDoE is required to cause a notice to be published in the Government Gazette and in two daily newspapers.Footnote 100

While it is understandable that some developmental projects may be urgent in the national or economic interest, it is argued that a precautionary approach is needed for exempt undertakings, since governmental authorities seem to prioritize economic interests. For instance, the extension of the Mare Chicose landfill project by the ministry responsible for local government matters was approved as an exempt undertaking,Footnote 101 although the operation of this landfill was controversial when its extension was approved.Footnote 102 Given the technical specificities of different undertakings, an independent multidisciplinary committee would be required to carry out the exercise of balancing interests in respect of these unlisted activities.

Public participation at pre-approval stage of the EIA process

EIA is meant as a predictive tool at the early planning stages of development projects, so that the government and the community can form a view about a proposal's environmental acceptability. It is argued that effective public participation (through community or stakeholder input) is part of a precautionary approach to avoid the adverse socio-economic and environmental impact of a proposed undertaking and to ensure informed decision-making. Precautionary consultation is necessary to present decision-makers with an accurate representation of all relevant value positions. The proponent of a proposed undertaking needs to address key issues raised by the public in the EIA public inspection process. The local EIA mechanism provides procedures for public inspection for an EIA, although public inspection for a PER application is not compulsory.

After the application for an EIA licence has been submitted to the DDoE, it must be made available for public inspection during working hours at the Department of the Environment (DoE) office.Footnote 103 No later than 14 days after such an application has been submitted, the DDoE is required to give notice of public inspection with a summary of the EIA application in the Government Gazette and in two consecutive issues of two daily newspapers.Footnote 104 Public inspection with respect to an EIA licence application is required not less than ten days but not more than 21 days after the date of publication in the Government Gazette.Footnote 105 The DDoE may decide to extend the time limit for the submission of public comments on an EIA licence application except in the case of an application submitted by the BOI.Footnote 106 He or she also has the discretion to decide whether an EIA will be published or an extract of the EIA will be posted on the internet for public inspection.Footnote 107 However, when extracts of EIA reports are submitted for public comment and posted on the internet, they only consist of a table of contents of the reports.Footnote 108 The actual chapters of the reports are not available, contrary to what is indicated in the MoE website. The full EIA reports may nevertheless be consulted at the MoE resource centre or at the office of the local authority concerned.

Public participation would be facilitated if there were systematic posting of an EIA licence application on the MoE website for public inspection, instead of this being up to the DDoE's discretion. The public can only participate effectively if enough information is provided with respect to the proposed undertaking. Further, procedures for the approval of a PER only involve public participation if the DDoE requests any public department, enforcing agency or NGO to submit observations in writing on the PER within not more than 14 days of the request.

Where an EIA application is submitted through the BOI, observations may not be made later than seven days after the request and the DDoE shall refer the application to the EIA Committee not later than 14 days after the expiry of the time limit set for the submission of public comments.Footnote 109 The EPA does not require public inspection for such applications, but refers to observations that the DDoE may request in writing from any public department, enforcing agency, NGO or any other person. The DDoE may also request a technical committee to be set up for advice on an EIA application or require the proponent to include additional information in the EIA application.

In the context of the conversion of agricultural land to other development purposes to optimize land available for creating economic value, EIA licence applications are made through the LPES Technical Committee. However there is no public participation in such decision making.

It is also argued that better consideration should be given to public commentsFootnote 110 resulting from public inspection with respect to an EIA licence application. The EPA should include provisions to take into account public comments or the views of those who have been consulted.Footnote 111 In order to enhance public participation in the preparation of an EIA report, the particulars of any public consultation held in the area where the undertaking is to be located should be made available to the public.Footnote 112 It is recommended that a right of access to information be included in the Mauritian Constitution or the EPA regarding environmental information or that specific legislation be introduced with respect to the right of access to information to promote a culture of transparency and accountability in the private and public sectors.Footnote 113

Further, it is important to include environmental NGOs in the EIA Committee to enhance public participation in the EIA process. The committee is currently composed of the permanent secretaries of the MoE (as chairperson) and of the relevant ministries (having responsibility for the subjects specified in the sixth schedule),Footnote 114 and the DDoE.Footnote 115 The EIA Committee may also establish a sub-committee to examine part or the whole of the EIA or co-opt any person as a member, albeit with no voting rights.

The DDoE is required to give notice of a summary of the minister's decision to approve or reject the EIA, stating the place where the full decision is available.Footnote 116 It is recommended that the EPA include a legal requirement to publish the final decision (in its entirety) regarding the approval of an EIA licence or PER or to make public the reason for which it was granted.Footnote 117

Use of mitigation measures and alternatives

Mitigation represents any process, activity or action designed to avoid, reduce or remedy significant adverse environmental effects likely to be caused by a developmental project, as well as remaining negative repercussions.Footnote 118 In practice, the outcome of mitigation in or surrounding a development site should be the avoidance of predicted effects or the reduction of such effects to an acceptable level of impact or their remediation.Footnote 119

The Mauritian EIA process does require the indication of mitigation measures and alternatives by proponents in the application for an EIA licenceFootnote 120 or a PER,Footnote 121 while the Environment Assessment Division ascertains that appropriate measures are taken to mitigate any adverse environmental impact. An environmental monitoring plan is required for an EIA application, describing respective mitigation measures and how the adverse impact of a particular activity will be monitored during its design, construction and operational phases. Any alternative manner or process in which a proposed undertaking may be carried out so as to cause less harm to the environment needs to be indicated in the EIA application.

However, better implementation of such mitigation measures and alternatives is necessary in practice. Where EIAs concern coastal development, it is strongly recommended that legal requirements be included in an EIA report or PER to provide for mitigation and adaptation measures to fight against climate change effects.Footnote 122 It is necessary for EIA and PER applications to include arrangements for emergency responses to activities that present a grave and imminent danger to biological diversity.Footnote 123 A PER should also include an environmental monitoring plan with decommissioning instructions to remove an activity from active status and related issues. Further, it is argued that a precautionary approach regarding the EIA report or PER should include not only mitigation measures, but also a “no development” option as an alternative.Footnote 124 It is important not to proceed with the approval of a proposed undertaking where there are uncertain environmental risks regarding its significant or irreversible negative effects.

PRECAUTIONARY APPROACH AT DECISION MAKING AND AT POST-APPROVAL STAGES OF THE EIA PROCESS

In general, proponents who have applied for an EIA or a PER only provide information on what was available before the EIA or PER was approved. At the operational level, it is important to check whether what was predicted in terms of an EIA has been realized and whether mitigation measures are being appropriately implemented. Precaution is also the leading policy approach to guide environmental decision makers and EIA licensees and operators with an approved PER. The CBD Voluntary Guidelines on Biodiversity Inclusive Impact Assessment acknowledge the importance of the monitoring and follow-up of EIAs, while the major international funding agencies require EIA monitoring in their procedures.Footnote 125 International principles for best practice EIA follow-up require monitoring, evaluation, management and communication elements.Footnote 126 This article now considers a precautionary approach in the post-decision stage process with respect to EIA monitoring, compliance and auditing.

EIA monitoring

Implementing precaution in decision making regarding EIA includes environmental conditions to monitor the operation of the approved activity, even with an EIA licence or approved PER. A skeletal post-EIA monitoring unit monitored conditions under which an EIA certificate was issuedFootnote 127 until the EIA / PER Monitoring CommitteeFootnote 128 was set up in 2013.

The EIA / PER Monitoring Committee lays down programmes and ensures their implementation to follow up on progress in line with approved EIAs or PERs.Footnote 129 It may monitor exercises which may be necessary to ensure compliance with the conditions of an EIA licence or an approved PER. It may determine enforcement measures in the case of non-compliance. This committeeFootnote 130 is mainly composed of representatives of public departments and the author argues that it should also include environmental NGOs to ensure better monitoring. Well defined environmental monitoring plans and emergency management plans should be required for both EIAs and PERs to improve monitoring. Further, improvements are required to the monitoring of the conditions of an EIA licence or approved PER before it is renewed. Monitoring EIAs and approved PERs also entails communicating the results of EIA follow-up to provide feedback on project implementation and EIA processes. The communication of EIA follow-up results should involve proponents, EIA regulators and stakeholders. Providing unrestricted access to information on environmental conditions to different user groups will undoubtedly improve understanding regarding projects which might need environmental and ethical awareness.Footnote 131

It is recommended that proponents of projects and activities be legally required to monitor and report publicly on the environmental consequences and outcomes associated with their activities. This would also entail the proponent setting up an environmental management team to monitor the environmental monitoring plan.

EIA compliance and audits

After an EIA or PER has been approved, auditing enables the management and evaluation of the environmental performance of the project or activity. Audits are meant to check the accuracy of predictions made in the EIA or PER reports, to assess the success of mitigation and the practical impact of the project.

Despite the establishment of the EIA / PER Monitoring Committee, EIA auditing is still lacking in the post-decision stage and there is no strict compliance by operators who have already been granted an EIA licence or a PER.Footnote 132 Very often, it is only when there are complaints regarding an activity that enforcing authorities check compliance issues.Footnote 133

Environmental conditions in EIA licences or approved PERs also need to be outcome focused environmental conditions that are clear, reasonable and auditable, so that they control potential risks and impact better.

Inter-sectoral cooperation by the regulator, proponent and community is also necessary at this stage to monitor activities and compliance for activities with an EIA licence or approved PER.Footnote 134

CONCLUSION

A strong form of the precautionary principle would call for measures to lessen the risk of environmental harm, although the application of the precautionary principle in a developing state may be hampered by the political desire to prioritize economic interests. Advancing precaution in local environmental decision making in a substantive manner is greatly needed, to the extent that precautionary considerations are not mandatory for decision makers with planning powers. Besides, the precautionary principle is only weakly incorporated in policy documents. Giving full effect to the precautionary principle to influence decisions and environmental management practice in the EIA process would mean integrating it in the EIA mechanism by way of legislation.Footnote 135

Enhanced precaution, transparency and accountability are of utmost importance in the Mauritian EIA process. An EIA should not be a mere procedural requirement to secure a development permit, but a meaningful environmental precautionary exercise to bring about real environmental benefits.Footnote 136 Besides, an adequate EIA for national scale developmental projects to a large extent determines successful borrowing from development banks or foreign aid agencies.Footnote 137 EIA should also not be used as a project justification tool, but rather as project planning for environmental protection. In practice, governmental authorities and proponents of projects seeking EIA approval may use EIAs as a way of artificially legitimizing proposals and policies,Footnote 138 while Mauritius has reached a stage in its economic development where it can afford the “no development” option for projects with major impact. The importance of a precautionary EIA in Mauritius and other SIDS cannot be overstated to ensure their resilience in light of global environmental change and uncertainty.

Footnotes

*

Licence en droit, Montpellier, France; maîtrise en droit (Montpellier); diplôme d’études appliquées en droit (Montpellier); doctorat en droit (Montpellier). Post-doctoral research fellow, Mandela Institute, School of Law, University of the Witwatersrand, South Africa. The author wishes to acknowledge funding from the North-West University, South Africa, for the preparation and submission of this article during her post-doctoral research fellowship at its Faculty of Law.

1 Sec 34(A)(vii) of the Barbados Plan of Action includes increasing attention to national physical planning in both urban and rural environments and the use of environmental impact assessments and other decision-making tools. See the “Declaration of Barbados” and “Programme of action for the sustainable development of small island developing states” in UN “Report of the global conference on the sustainable development of small island developing states”, res 1, annexes I and II, available at: <http://www.un.org/documents/ga/conf167/aconf167-9.htm> (last accessed 21 February 2017).

2 Mauritius has a total maritime zone of 2.3 million square km, with an exclusive economic zone of 1.96 million square km and a continental shelf of 396,000 square km co-managed with the Republic of the Seychelles. Mauritius is expected to make further submissions for an extended continental shelf of 303,000 square km on the seabed and subsoil to the Commission on the Limits of the Continental Shelf in respect of Rodrigues and Chagos Archipelago. See the Board of Investment website, available at: <http://www.investmauritius.com/investment-opportunities/ocean-economy.aspx> (last accessed 21 February 2017). Seabed exploration for hydrocarbons and minerals is on the agenda within the context of the development of an ocean economy for Mauritius: ibid.

3 See UNESCO The Precautionary Principle (2005, World Commission on the Ethics of Scientific Knowledge and Technology) at 7 , available at <http://unesdoc.unesco.org/images/0013/001395/139578e.pdf> (last accessed 21 February 2017).

4 Gullett, W “The precautionary principle in Australia: Policy, law and potential precautionary environment impact assessments” (2000) 11 Risk: Health, Safety and Environment 93 at 148.

5 Ibid.

6 Act 34 of 1991. The EPA (and its related regulations), together with any direction, order, notice or requirement issued or imposed by the act, are the most important source of environmental law in the country.

7 The traditional approach focused on the media that were polluted (air, water and land), while an integrated approach to pollution control focuses on the pollutant and seeks to reduce the effect that it may have on any and all environmental media. See Thornton, J and Beckwith, S Environmental Law (1997, Sweet and Maxwell Textbook Series) at 116 .

8 Lim Tung, OJ Environmental Law in Mauritius (2015, International Encyclopaedia Series, Wolter Kluwer Law), para 34.

9 Gullett “The precautionary principle”, above at note 4 at 116.

10 Act 19 of 2002.

11 “A proponent's guide to EIA”, “EIA guidelines for proposed desalination plants”, EIA guidelines for proposed stone crushing plants”, “EIA guideline for proposed residential morcellement projects”, “EIA guideline for proposed coastal hotel projects” and “EIA guidelines for fish farming in the sea”, all available at: <http://environment.govmu.org/English/eia/Pages/Environmental-Impact-Assessment.aspx> (last accessed 21 February 2017).

12 See the Convention on Biological Diversity (CBD) EIA guidelines: Commission for Environmental Assessment “Biodiversity assessment in EIA or SEA: Background document to CBD decision VIII/28: Voluntary guidelines on biodiversity - inclusive impact assessment” (April 2006), available at: <http://api.commissiemer.nl/docs/os/bibliotheek/biodiversityeiasea.pdf> (last accessed 21 February 2017); UN Conference on Environment and Development: Convention on Biological Diversity (5 June 1992, entered into force 29 December 1993): UN doc UNEP/Bio.Div/N7-INC.S/4, reprinted in 31 International Legal Materials 818.

13 Gullett “The precautionary principle”, above at note 4 at 146.

14 See the “Vorsorgeprinzip”: Compton, MM “Applying World Trade Organization rules to the labelling of genetically modified foods” (2003) 15 Pace International Law Review 359 at 377; Steele, K “The precautionary principle: A new approach to public decision-making” (2006) 5 Law, Probability and Risk 19 at 28.

15 See Canadian Law on the Protection of the Environment (LC 1999, chap 33), art 2(1)(a). Art 5 of the French Environment Charter (Constitutional Law No 2005-205 of 1 March 2005, Journal Officiel de la République Française, No 0051 of 2 March 2005 at 3697) provides a definition of the precautionary principle. The precautionary principle is also one of the main principles pertaining to environmental protection in the European Union; see the consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (Official Journal C 326, 26 October 2012 at 1), art 191, para 2. de Sadeleer, N (ed) Implementing the Precautionary Principle; Approaches from the Nordic Countries, the European Union and United States (2007, Earthscan).

16 This principle has become the underlying rationale for a large and increasing number of international treaties and declarations in the fields of sustainable development, environmental protection, health, trade and food safety. See UNESCO The Precautionary Principle, above at note 3 at 8; Freestone, D and Hey, E The Precautionary Principle and International Law: The Challenge of Implementation (1996, Kluwer Law International). However, the principle is considered vague and needs to be more precise: Hicker, JE Jr and Vern, WR “Refining the precautionary principle in international environmental law” (1994–95) 14 Virginia Environmental Law Journal 424 .

17 Birnie, PW and Boyle, A International Law and the Environment (2002, Oxford University Press) at 116 .

18 Rio Declaration on Environment and Development, UN Conference on Environment and Development, 14 June 1992: UN doc A/CONF/151/5/Rev 1, 31 International Legal Materials 874.

19 Id, principle 15.

20 See: <http://www.newworldencyclopedia.org/entry/Precautionary_principle> (last accessed 21 February 2017).

21 See UNESCO The Precautionary Principle, above at note 3 at 14.

22 Gullett “The precautionary principle”, above at note 4 at 146.

23 For the value of the precautionary principle, see Birnie and Boyle International Law, above at note 17 at 118–19. In the international context, it is frequently argued that declarations of principles are not traditional sources of international law and are not binding on the member states of the organization that adopted them. Declarations of principles are “recommendations” without binding force. See UNESCO The Precautionary Principle, above at note 3 at 22. See also international case law regarding the value of the precautionary principle: Argentina v Uruguay ICJ [2010] (Pulp Mills in the River Uruguay); EC - Measures Concerning Meat and Meat Products (Hormones) [1998] WT/DS26-48/AB/R; EC - Measures Affecting Asbestos-Containing Products [2001] WT/D135/AB/R. Also Cho, Y “Precautionary principle in the International Tribunal for the Law of the Sea” (2009) 10 Sustainable Development Law and Policy 1 .

24 International Union for Conservation of Nature “Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management” (May 2007) at 1, available at <http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf> (last accessed 21 February 2017); Birnie and Boyle International Law, above at note 17 at 116.

25 Footnote Ibid.

26 See UNESCO The Precautionary Principle, above at note 3 at 22–23.

27 Mauritius acknowledges the importance of sustainable management consistent with the precautionary principle in the preamble of the bilateral Treaty Concerning the Joint Management of the Continental Shelf in the Mascarene Plateau Region Between the Government of the Republic of Seychelles and the Government of the Republic of Mauritius (concluded on 13 March 2012) UN Treaty Series 2847, available at: <https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280331cc0> (last accessed 21 February 2017). See treaties to which Mauritius is a party, including the preambles of the CBD (ratified on 17 August 1992) and the Cartagena Protocol on Transboundary Movements of Living Modified Organisms (officially titled the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, entered into force 11 September 2003) 39 International Legal Materials 1257 (adopted on 29 January 2000 and ratified by Mauritius on 9 September 2001); UN Framework Convention on Climate Change, 1 International Legal Materials 851 (adopted on 9 May 1992 and ratified by Mauritius on 17 August 1992), art 3.33; UN Convention on the Law of the Sea, 21 International Legal Materials 1261 (adopted on 10 December 1982 and ratified by Mauritius on 4 November 1994), art 206.

28 Sage-Fuller, B The Precautionary Principle in Marine Environmental Law: With Special Reference to High-Risk Vessels (2013, Routledge) at 52 .

29 Neither the Constitution of the Republic of Mauritius (RL 1/1, 12 March 1968) nor national legislation includes any provisions on the precautionary principle.

30 Lim Tung Environmental Law in Mauritius, above at note 8, para 31.

31 See Republic of Mauritius “Maurice Ile Durable policy strategy and action plan: Final report” (2013) at v, available at <http://mid.govmu.org/portal/sites/mid/file/full%20report%20midpolicy.pdf> (last accessed 21 February 2017); and Republic of Mauritius “National biodiversity strategy and action plan 2006–2015” (2006) at 2, available at: <https:// www.cbd.int/doc/world/mu/mu-nbsap-01-en.pdf> (last accessed 21 February 2017).

32 See Republic of Mauritius “Maurice Ile Durable”, above at note 31. In 2008, the MID concept was announced by the government as the new long-term vision to make Mauritius a world model for achieving sustainable development, particularly for SIDS: Lim Tung Environmental Law in Mauritius, above at note 8, para 35.

33 MID guiding principles also recognize traditional and indigenous knowledge: id, para 42.

34 Steele “The precautionary principle”, above at note 14 at 19.

35 The CBD also allows for public participation in such procedures: CBD, art 14. See Commission for Environmental Assessment “Biodiversity assessment”, above at note 12.

36 Steele “The precautionary principle”, above at note 14 at 20.

37 Footnote Ibid.

38 MoE representatives invoked the unsuitability of the site as well as adverse impact on residential areas and negative impact on the health of neighbouring inhabitants. See The (Mauritius) CT Power Ltd v The Ministry of Environment and Sustainable Development cause no 02/2011 [2012] Environmental Appeal Tribunal.

39 Id at 41.

40 Gullett “The precautionary principle”, above at note 4 at 147.

41 The first EAT that was provided under the EPA was replaced by the Environment and Land Use Appeal Tribunal (ELUAT), set up under the ELUAT Act 5 of 2012 and with a wider jurisdiction than the EAT.

42 According to the principle of stewardship, “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”: EPA, sec 2.

43 See Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133, a decision of the Australian New South Wales Land and Environment Court delivered by Preston CJ on 24 April 2006; Hutchison Telecommunications (Australia) Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 104 (26 March 2004); Monsanto Agricoltura Italia v Presidenza del Consiglio dei Ministri European Court of Justice case C-236/0 [13 March 2003].

44 The lack of scientific uncertainty is assessed in relation to the nature and scope of the threat of environmental damage. See CT Power, above at note 38 at 44.

45 Id at 42.

46 Footnote Ibid.

47 The threat of environmental damage must be adequately sustained by scientific evidence, as held in Monsanto Agricoltura Italia, above at note 43, para 138.

48 See CT Power, above at note 38 at 46.

49 Id at 41.

50 Id at 48.

51 The proponent must also address issues such as noise, odour, light and dust in relation to the proposed power plant, in accordance with the supplementary EIA commissioned by the Department of the Environment: id at 77–78.

52 Including, for example, sugar factories, textile manufacturing factories and major hotels in the coastal zone.

53 An average of 125 EIA licences per year were issued from 1993 to 2002: Ramjeawon, T and Beedassy, R “Evaluation of the EIA system on the island of Mauritius and development of an environmental monitoring plan framework” (2004) 24/5 Environmental Impact Assessment Review 537 at 537. A total of 75 EIA licences were issued in 2003, compared with 26 in 2012. See Digest of Environmental Statistics 2012 (2013, Ministry of Finance and Economic Development) at 91 .

54 It also attends to appeals made by proponents against decisions regarding an EIA or PER application at the Environment and Land Use Appeal Tribunal, as well as cases related to EIAs at the Supreme Court or other courts.

55 Undertakings which are not listed in the fifth schedule of the EPA that are likely, by virtue of their nature, scope, scale and sensitive location, to have an impact on the environment or on the zoning of an area: EPA, sec 17(1).

56 For instance, undertakings concerning the assembly of motor vehicles, block making plant manufacturing over 10,000 blocks per day, bulk processing, storage and handling of petroleum products, liquefied gas, coal and petro-chemical products, hospitals, construction of marinas, conversion of forest land to any other land use, housing projects and apartment complexes over 50 units within 1 km of the high water mark.

57 EPA, sec 18(2)(g). For instance, the EIA guidelines for fish farming in the sea include a social impact assessment. Fish farms should be developed and operated in a socially responsible manner, benefiting the farm, local communities and the country. See “Guidelines and annexes for application for authorisation for fish farming in the sea” (2008), available at: <http://www.investmauritius.com/media/32978/Guidelines-for-application-for-authorisation-for-fish-farming-in-the-sea.pdf> (last accessed 21 February 2017).

58 See the MoE website, above at note 11.

59 It is situated in the Indian Ocean, 2,000 km from the south-east coast of the African continent, with an area of 1,865 square km without its dependencies: Lim Tung Environmental Law in Mauritius, above at note 8, para 2.

60 EPA, sec 92(1).

61 Id, sec 91(2)(d).

62 Until 8 November 1965, the most important dependencies of Mauritius were Rodrigues, situated 650 km to the north-east of Mauritius, and other islands: Agaléga, 1,000 km to the north and Cargados Carajos (Saint Brandon), 450 km to the north-east of Mauritius. The Chagos Archipelago is located about 2,000 km to the north-east of Mauritius and is subject to a territorial dispute between the United Kingdom and Mauritius. Tromelin, situated 500 km to the north-west of Mauritius, has been claimed as a dependency by Mauritius, France and also Madagascar. See Lim Tung Environmental Law in Mauritius, above at note 8, paras 2–7.

63 For instance, a PER application must be made in respect of coral crushing and processing, the creation of bathing areas by mechanical means, depots for 50 or more buses, food processing industries, industrial-scale laundry and dry-cleaning within 1 km of the high water mark, land reclamation and backfilling, paint manufacture, and the mechanical removal of marine flora.

64 Lim Tung Environmental Law in Mauritius, above at note 8, para 84.

65 See the “Proponent's guide to preliminary environmental report (PER)”, “PER guidelines for night clubs” and “Guidelines for rearing of poultry above 5000 heads”, available at: <http://environment.govmu.org/English/eia/Pages/Environmental-Impact-Assessment.aspx> (last accessed 21 February 2017).

66 Lim Tung Environmental Law in Mauritius, above at note 8, para 95.

67 EPA, sec 17.

68 For instance if the unlisted activity may have an impact on the environment or on the zoning of an area: id, sec 17(1).

69 Lim Tung Environmental Law in Mauritius, above at note 8, para 117. Environmental and health and safety guidelines apply to selected activities with a view to protecting the environment, public health and workplace safety.

70 This faster procedure is also used for applications for other permits and authorization: id, para 99. The LPES was set up to ensure that land available for creating economic value is fully utilized and optimally exploited.

71 Act 32 of 2004, sec 40D(2).

72 The supervising officer of the ministry responsible for land use planning and development is competent to consider any application for registration under the LPES: id sec 40(F). The LPES Technical Committee reports to a ministerial committee established by the prime minister.

73 Gullett “The precautionary principle”, above at note 4 at 148–49.

74 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 544. For instance, offshore drilling for oil and seabed exploration for hydrocarbons and minerals do not fall within existing categories requiring a PER or an EIA licence.

75 Such as wetlands and the coastal zone area known as the Pas Géométriques. The breadth of the Pas Géométriques is reckoned from the line of the seashore reached by high water at spring tide and can never be less than 81.21 metres. Its boundary line is parallel to the lines of the coast considered as a whole and without regard to minor irregularities: Pas Géométriques Act (Revised Laws of Mauritius 4/21 of 1982), sec 3(1). Annexes of the Pas Géométriques include the sea water pools, salt water marshes, lakes, bogs and basins situated wholly or partly within the Pas Géométriques, the islets adjacent to the shore that can be reached on foot at low tide, the creeks at the mouths of rivers, and the river mouths themselves: id, sec 2. See Moothoo v Osprey Co Ltd [2004] SCJ 308, regarding construction projects near or on the Pas Géométriques. Developmental works in an area close to a protected area require a Cultural Heritage Impact Assessment Licence and, since June 2014, clearance from the National Ramsar Committee.

76 See Wood, C Environmental Impact Assessment: A Comparative Review (2nd ed, 2003, Prentice Hall) at 333 .

77 See Glazewski, J Environmental Law in South Africa (2nd ed, 2005, Butterworths) at 232 .

78 See Commission for Environmental Assessment “Biodiversity assessment”, above at note 12.

79 Undertakings requiring an SEIA were listed in the first schedule of the EPA. See O Bina “A critical review of the dominant lines of argumentation on the need for strategic assessment” (2007) 27 Environment Impact Assessment Review 585 at 587.

80 Such as housing development programmes, integrated coastal zone management plans, industrial estates, national physical development plans, outline schemes, new towns or satellite towns, port master plans, sewerage master plans, solid waste management plans as well as tourism development plans for Mauritius and Rodrigues. See part C of the former first schedule of the EPA before it was repealed in 2008.

81 See Mega Design Ltd of Mauritius (civil engineers), in association with Entech Consultants (Pty) Ltd (coastal engineers) and WSP Walmsley (Pty) Ltd (environmental scientists) “Strategic EIA on the identification of potential sites for marinas, water-ski lanes and bathing areas: Final Technical Report - Executive summary”, available at: <http://apps.unep.org/publications/pmtdocuments/-Strategic%20EIA%20for%20Identification%20of%20Potential%20Sites%20for%20Marinas,%20Ski%20Lanes%20and%20Bathing%20Areas%20for%20Mauritius%20-%20Final%20Technical%20ReportEXECUTIVE%20SUMMARY%20SEI.pdf> (last accessed 21 February 2017).

82 See Palerm, J, Ousik, J and Deepchand, K “Mauritius: Strategic environmental assessment on the sugar cane sector” in Organisation for Economic and Cooperation Development Strategic Environmental Assessment in Development Practice: A Review of Recent Experience (2012, OECD Publishing) 53 . The sugar industry has made a significant contribution to the development of the Mauritian economy, but may have an impact on the environment if inadequately managed; the strategic environment assessment of the multi annual adaptation strategy for the reform of the sugar sector (MAAS) highlights the environmental impact of land use change and proposes mitigation measures to minimize sugar sector reform. Policy instruments that had an impact on land use in mainland Mauritius include MAAS 2006–15, which was devised in view of a sugar sector reform plan in the context of the phasing out of the preferential treatment guaranteed by the European Community on sugar prices. See Lim Tung Environmental Law in Mauritius, above at note 8, para 265.

83 There are also five projects covering approximately 2,400 hectares as indicated in the editorial to the 2015–16 national budget; see: <http://www.investmauritius.com/budget2015/Editorial.aspx> (last accessed 21 February 2017). See Lim Tung, id, para 392.

84 BOI “Smart city scheme guidelines” (June 2015), available at: <http://www.investmauritius.com/media/300689/smart-city-scheme-guidelines.pdf> (last accessed 21 February 2017). The Smart City Scheme was set up under the Investment Promotion Act (Smart City Scheme) Regulations GN 128 of 2015, with more detailed requirements for companies that intend to develop a project under the Smart City Scheme; see id at 14. To obtain a Smart City Scheme certificate, the proponent has to provide, inter alia, a social impact assessment report providing an appraisal of the impact on the day to day quality of life of the immediate communities whose environment will be affected by the proposed project. The EIA application must include the surrounding environment indicating adjacent residential / built-up areas, environmentally sensitive areas, watercourses and designated sites of interest.

85 Gullett “The precautionary principle”, above at note 4 at 148.

86 See CBD, art 14(1)(b).

87 See Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 542. See VK Jogoo “EIA of the proposed Midlands Dam Project: Mauritius case study 27” UNEP EIA Training Resource Manual, Case Studies from Developing Countries 261 at 266, available at: <http://www.unep.ch/etu/publications/36)%20261%20to%20267.pdf> (last accessed 21 February 2017).

88 For instance as a signatory to the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (21 June 1988), available at: <http://www.unep.org/nairobiconvention/> (last accessed 21 February 2017); “South African Developing Countries (SADC) environmental legislation handbook” (2012) at 220, available at: <http://www.saiea.com/dbsa_handbook_update2012/dbsaFrameSet.html> (last accessed 21 February 2017).

89 World Wildlife Fund “Oil and gas developments in the western Indian Ocean region” (policy brief on the environmental and social aspects of recent oil and gas discoveries in the western Indian Ocean, 2012); Lim Tung Environmental Law in Mauritius, above at note 8, para 264.

90 A list of EIA consultants is available on the MoE website, available at: <http://environment.govmu.org/English/eia/Documents/Reports/eiaconsultants11.pdf> (last accessed 21 February 2017).

91 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 542.

92 EPA, sec 15(4).

93 EIA technical experts need field experience and multidisciplinary skills, as well as a good foundation in environmental science. See Payet, RA “A review of environment impact assessment and sustainable development in small island developing states” in Vigilance, C and Roberts, JL Tools for Mainstreaming Sustainable Development in Small States (2011, Commonwealth Secretariat) 205 at 214–15.

94 Certification can be based on a combination of tertiary qualifications, core EIA competencies, demonstrated EIA experience and a commitment to ongoing professional development. At the South African Developing Countries level, South Africa, Botswana and Tanzania have a statutory requirement for environmental assessment practitioners to be certified, while Lesotho and Namibia have taken steps towards a certification scheme. The certification scheme for environmental assessment practitioners ensures that there is a required level of professional quality and conduct through a rigorous set of qualifying criteria and the threat of disciplinary action if the code of conduct is breached. See “SADC environmental legislation handbook”, above at note 88 at 16.

95 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 541–42.

96 See sectoral guidelines on the content of an EIA, available at the MoE website, above at note 11. “Sectoral guideline on the content of PER” (for the food processing industry, excluding small and medium enterprises, the rearing of over 5,000 head of poultry, nightclubs, the rearing of more than 20 head of cattle, 50 head of goats and 50 head of sheep); see MoE “Environmental guidelines”, available at: <http://environment.govmu.org/English/legislations/Pages/Environmental-Guidelines.aspx> (last accessed 21 February 2017). In the proposed Midlands Dam project, the EIA process and scoping exercise proved inadequate for dealing with broader management issues: Jogoo “EIA of the proposed Midlands Dam project”, above at note 87 at 266. Some environmental guidelines have been drafted for non-scheduled undertakings, including rearing under 5,000 head of poultry, assembling batteries, bakeries, residential care homes, undersea walks, nautical centres, and soap and detergent manufacturing; see MoE “Environmental guidelines”, ibid.

97 EPA, sec 28.

98 This could be termed a fast-track procedure for the application for an EIA licence.

99 EPA, sec 28(2).

100 Id, sec 28(5). The notice must include a summary description of the undertaking and its location, the proponent of the undertaking, a declaration that the undertaking is an exempt undertaking, and EIA approval and the conditions attached to its approval.

101 The construction and subsequent operation of cell 7 over 14.5 hectares were approved as an exempt undertaking in 2013 and July 2014 respectively. See MoE “Decisions on EIA applications”, available at <http://environment.govmu.org/English/eia/Pages/Decision-on-EIA-Applications.aspx> (last accessed 21 February 2017). There were numerous complaints by the inhabitants of Mare Chicose regarding health and pollution impact. Lim Tung Environmental Law in Mauritius, above at note 8, para 116.

102 In 2013, fire-fighters took three days to control an accidental fire that caused acute air pollution in the neighbourhood. Yet the construction of sub cell 7 was approved in January 2014 as an exempt undertaking, and a contingency plan for any accident or failure of equipment was said to have been submitted to the DDoE before it became operational. Lim Tung Environmental Law in Mauritius, ibid.

103 Alternatively it can be made available at the municipal council or district council of the area where the undertaking is to be carried out or other places specified by the DDoE: id, para 88.

104 EPA, sec 20(2).

105 Id, sec 20(3)(d).

106 Id, sec 20(4).

107 Id, sec 20(5). See extracts of the EIA reports that have been posted on the MoE website since 2011: <http://environment.govmu.org/English/eia/Pages/EIA-Reports.aspx> (last accessed 21 February 2017).

108 See EIA report extracts, ibid.

109 EPA, sec 21(5).

110 Id, sec 20. Lim Tung, OJ “Development and balancing of interests in environmental policy and law in Mauritius” in Faure, M and du Plessis, W (eds) The Balancing of Interests in Environmental Law in Africa (2011, Pretoria University Law Press) 261 at 273.

111 de Boucherville Baissac, P “Mauritius country report” at 11 in Tarr, P Environmental Impact Assessment in Southern Africa (2003, South African Institute for Environmental Assessment), available at: <http://www.saiea.com/saiea-book/> (last accessed 21 February 2017).

112 Alternatively the particulars should be made available to other members of the public who might be affected by the respective undertaking. Lim Tung Environmental Law in Mauritius, above at note 8, para 117. The particulars of any public consultation in the area where the undertaking is to be located are included in the EIA report (EPA, sec 19).

113 For instance, the Constitution of the Republic of South Africa 1996, sec 32(1) and the South African Promotion of Access to Information Act 2 of 2000 provide for the right of access to information.

114 These are the ministries with responsibility for agriculture, fisheries and marine resources, health, industry, local government, public infrastructure, water resources and waste water.

115 EPA, sec 22.

116 The DDoE shall give notice as soon as possible, but not later than seven working days after the day on which the minister makes his decision: id, sec 23(5). Notice must be given in the Government Gazette and in the newspapers in which notice of the application was given.

117 de Boucherville Baissac “Mauritius country report”, above at note 111 at 11.

118 Marshall, R, Arts, J and Morrison-Saunders, A “Application of mitigation and its resolution within environmental impact assessment: An industrial perspective” (2003) 19/3 Impact Assessment and Project Appraisal 195 at 195–204 .

119 Id at 195.

120 See EPA, sec 18(2)(h) and(k).

121 Id, sec 16(2)(d).

122 Climate change adaptation and mitigation are a necessity for SIDS and essential components to be taken into consideration in EIAs. For instance, Tuvalu has EIA procedures encompassing disaster risk reduction arising from severe extreme events and sea level rise. See Payet “A review of environment impact assessment”, above at note 93 at 213.

123 CBD, art 14(1)(e).

124 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 542.

125 See Commission for Environmental Assessment “Biodiversity assessment”, above at note 12 at 40; Craik, N The International Law of Environmental Impact Assessment (2010, Cambridge University Press), chap 6. The World Bank and regional development banks (such as the African Development Bank) have well-established EIA procedures applicable to their lending activities and projects undertaken by borrowing countries. Environmental assessment is one of the safeguard policies used by the World Bank to examine the potential environmental risks and benefits associated with bank investment lending operations. See World Bank “Environmental assessment” (operational policy 4.01), available at: <https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f7384.pdf> (last accessed 21 February 2017).

126 Marshall, R, Arts, J and Morrison-Saunders, A “International principles for best practice EIA follow-up” (2005) 23/3 Impact Assessment and Project Appraisal 175 at 176.

127 de Boucherville Baissac “Mauritius country report”, above at note 111 at 11.

128 EPA, sec 28A.

129 The committee meets at least once a month and must provide a report on its activities to the environment minister every six months (at the end of July and January).

130 It includes the DDoE, one or more officers from the DoE, a representative of the relevant ministries (having responsibility for the subjects specified in the sixth schedule of the EPA), a representative of the Police de l'Environnement (the MoE created the Environmental Police unit in 2000; it comprises police officers, nominated by the commissioner of police as a special unit of the Mauritius Police Force; see Lim Tung Environmental Law in Mauritius, above at note 8, para 76) and the chief executive of the relevant local authority.

131 Ministry of Environment and Sustainable Development “Mauritius environment outlook report, 2011: Summary for decision makers” at 5, available at: <http://environment.govmu.org/English//DOCUMENTS/MAURITIUS%20ENVIRONMENT%20OUTLOOK%20REPORT%20SUMMARY%20FOR%20DECISION%20MAKERS.PDF> (last accessed 21 February 2017).

132 Lim Tung Environmental Law in Mauritius, above at note 8, para 117.

133 The enforcement mechanism provided by Mauritian environmental law is based on a sectoral approach involving different environmental institutions, including local authorities, under the coordination of the DoE. Institutions responsible for enforcement are the DDoE, enforcing agencies, the Police de l'Environnement and authorized officers (id, para 71). Officers of the Rodrigues Environment Unit are vested with the same powers with regard to Rodrigues as authorized officers under the EPA.

134 The cooperation of the owner of the activity is required for post-EIA monitoring; see Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 543.

135 Gullett “The precautionary principle”, above at note 4 at 147.

136 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 538.

137 See World Bank “Environmental assessment”, above at note 125.

138 Macintosh, A “Best practice environment impact assessment: A model framework for Australia” (2010) 69/4 Australian Journal of Public Administration 401 at 405.

Ibid
Ibid
Ibid