Fishermen and Friends of the Sea v the Environmental Management Authority et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Jones, C.J. (AG.),Nelson, J.A.,Lucky, J.A. |
| Judgment Date | 14 August 2003 |
| Neutral Citation | TT 2003 CA 45 |
| Docket Number | Civil Appeal No. 106 of 2002 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 14 August 2003 |
Court of Appeal
Jones, C.J. (Ag.); Nelson, J.A.; Lucky, J.A.
Civil Appeal No. 106 of 2002
Mr. R. Maharaj, S.C., Dr. R. Ramlogan appeared On behalf of the appellant/applicant.
Mr. M. Daly, S.C., Miss M. Williams appeared on behalf of the respondent.
Mr. R. Martineau, S.C., Ms. D. Peake, Miss A. Mc Gowan appeared on behalf of the respondent/interested party.
Judicial Review - Application for certiorari to quash decision of first respondent to grant a certificate of environmental clearance to second respondent — Application for leave to apply for judicial review dismissed — Judicial Review Act, ss.6 and 11(1) — Learned judge entitled to exercise his discretion by refusing to extend the time for applying for leave — Appeal dismissed.
I have read in draft the judgment delivered by Nelson, J.A., I agree with it and have nothing to add.
Trinidad and Tobago possesses significant reserves of natural gas within its territorial waters and its continental shelf. These reserves must be drilled offshore and transmitted onshore for processing as liquefied natural gas for export.
The appellant is a public interest group and a body corporate dedicated to the environmental well-being of the citizens of Trinidad and Tobago. The appellant is the objector to the development of the offshore Kapok Field (“the Kapok Project”) and the continuation onshore of a 48-inch line from the Kapok Project from landfall at Rustville to the existing Beachfield receiving station (“the Bombax Pipeline Project”).
BP Trinidad and Tobago LLC (“BP”) the respondent/interested party is the developer and the proposed operator of Kapok and Bombax Pipeline Project.
The Environmental Management Authority (“the EMA”) the respondent is a statutory corporation charged with the management, use and regulation of the environment. However, the EMA is not the only regulatory authority relevant to the Kapok and Bombax Pipeline Project, which I will refer to compendiously as “the Project”, where convenient.
The Ministry of Energy and Energy Based Industries (“the Ministry”) regulates the petroleum industry as a whole. That Ministry issues licences for petroleum operations as well as licences for pipelines. The Ministry also has certain regulatory, environmental and safety responsibilities under the Petroleum Act, Chap. 62:01 and the Continental Shelf Act, Chap. 1:52 as well as other statutes not here material.
The Kapok gas field is situated off the south-east coast of Trinidad and the gas produced is to be transmitted by pipeline to a gas liquefaction facility owned by Atlantic LNG at Point Fortin, a town on the south-east coast of Trinidad.
Two additional (liquefied natural gas) “trains” or plants have been constructed at Point Fortin. The object of the Bombax and Kapok projects is to enable BP to deliver its increased share of the gas demand occasioned by the construction of these two plants at Atlantic LNG's facilities at Point Fortin.
The Kapok project involves the development of the Kapok drilling platform and the installation of three pipelines including a 48-inch gas pipeline, which extends 66 km to landfall at Rustville. This pipeline runs parallel to an existing 40-inch gas pipeline.
The Bombax Pipeline Project involves running the 48-inch gas pipeline from landfall at Rustville for an additional 2.4 km to the Beachfield Receiving Facility and the installation of new equipment at Beachfield to accommodate the increased quantities of gas. From Rustville to Beachfield the 48-inch pipeline occupies part of an existing right of way.
The increased volumes of gas so delivered at Beachfield are then transmitted through an existing 38-inch pipeline westwards over land to the processing plants at Point Fortin.
On November 29, 2001 the EMA granted BP a Certificate of Environmental Clearance (“CEC”) pursuant to section 35 of the Environmental Management Act (“the Act”) thus enabling BP to proceed with the project.
By an amended statement dated May 20, 2002 and filed pursuant to Order 53, rule 3 of the Rules of the Supreme Court 1975 the appellant sought leave to apply for judicial review of the EMA's decision to grant the CEC. The Amended Statement claimed relief by way of certeriori to quash that decision and a declaration that the CEC was unlawfully issued and was null and void.
Bereaux, J. heard the application for leave in July, 2002 inter partes, the EMA and BP (as an interested party) opposing the application. On August 30, 2002 the learned judge refused leave to apply for judicial review and dismissed the application.
By Notice of appeal dated September 13, 2002, and a draft amended notice of appeal filed on March 12, 2003 which amendments we formally grant, the appellant appealed against the refusal of leave by Bereaux, J.
The grounds of appeal extend over some 13 pages, and although couched in terms of an appeal errors of law attack the exercise of the learned judge's discretion on the basis that he misapprehended the facts, made wrong findings of fact or omitted to consider relevant facts and make findings thereon.
The appellant contends that the judge was wrong to hold there was no good reason to extend the time for applying for leave to move for judicial review. The appellant accepts the judge's finding that it became aware of the grant of the CEC in mid-March, 2002. The application for leave was therefore five and a half (5 1/2) months after the decision. The conduct of the EMA and of BP was such as to decline to disclose that the EMA had granted the CEC on November 29, 2001 although the appellant received correspondence from the EMA dated February 14, 2002 and from BP on February 25, 2002. The appellant had made known its concerns about the Project to both the EMA and BP. There was no national register recording the grant of the CEC. Delay was therefore due to the conduct of the EMA and BP.
The delay from mid-March, 2002 till the present application on May 20, 2002 was due to the sheer volume of the documentation and the need to gather information and obtain legal and technical advice. The judge wrongly held that the appellant had by then sufficient information.
BP was not prejudiced by the delay of two months since it had expended money on the Project prior to its application on August 29, 2002. BP “with full knowledge that the appellant/applicant intended to question in Court the approval of the projects” had incurred expenditure and there was no evidence of the quantum of expenditure incurred since the application. BP could not therefore complain of hardship, and the judge should have extended the period for the application.
The learned judge was wrong to hold that it would have been detrimental to good administration and prejudicial to BP to extend the time for making the application. The Judge should have considered the prejudice and hardship to 112,000 persons living in the vicinity of the pipeline. BP had been spending money on the Project since May, 2000 and there was no evidence of the quantum of expenditure between mid-March, 2002. Detriment occurred when the EMA failed to follow the statutory procedures under the Act. In any event the judge had a duty to grant leave and allow the issues to be considered at the same time as the substantive issues.
The learned judge should have extended the time because the public interest in having issues affecting the lives of human beings, public safety and health and the environment and the need to resolve such issues weighed heavily in favour of the grant of leave to apply even when the delay was unreasonable.
The time for applying for leave should have been extended if the judge had considered that the appellant merely had to show an arguable case. The case was complex enough for the judge to leave the issues to be determined at the substantive hearing. The affidavit evidence of Mr. Gary Aboud and of Dr. Khan was not challenged. The judge accepted that the EMA granted the CEC outside the provisions of the Act, which in itself showed that the appellant's case had sufficient merit.
Bereaux, J. could not properly hold that there was little merit in the appellant's application although the EMA did not follow the statutory CEC procedure under the Act. The EMA failed to comply in the following respects:
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(1) It did not prepare draft Terms of Reference (“TORS”) - rule 3(1) of the Certificate of Environmental Clearance Rules (“the CEC Rules”).
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(2) It could not therefore hold the required public consultation on such TORS - rule 5(2) of the CEC Rules.
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(3) It did not collect the prescribed charges to enable it to retain experts to assist in preparation of the TORs and the Environmental Impact Assessment (“the EIAs”) for the Project: rule 5(1)(e).
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(4) The EMA failed to prepare final TORs pursuant to rule 5(3) and instead adopted the TORs prepared by the Town and Country Planning Division (“TCPD”) and the Ministry before the new CEC process.
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(5) The EMA did not comply with section 35(5) of the Act and instead submitted for public comment the EIAs prepared by TCPD and the Ministry under the pre-Act procedure.
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(6) The EMA gave the minimum period of 30 days for public comment on the EIAs used and did not extend that period pursuant to section 28 of the Act.
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(7) The ElAs submitted by BP were inadequate.
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(8) The terms and conditions of the CEC were inadequate.
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(9) The EMA had no power to rely on TORs which were of no legal effect.
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(10) The transmission of increased volumes of gas from the 40-inch and 48-inch pipeline required a separate CEC from the one issued: section 35(1) of the Act.
The appellant further contended that despite the finding that...
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