IN THE SUPREME COURT OF BELIZE, A. D. 2007
Claim No. 302 of 2007
BETWEEN
Belize Institute for Environmental Law and Policy Applicant
(“BELPO”), acting on behalf of people and communities
downstream of said projects
AND
Chief Environmental Officer First Respondent
Department of the Environment
(Ministry of Natural Resources and the Environment)
Attorney General of Belize Second Respondent
Director of Health Services Interested Party
(Ministry of Health)
National Emergency Management Organization (NEMO) Interested Party
Ministry Responsible for National Emergency Management
National Meteorological Service Interested Party
(Ministry of Natural Resources and the Environment)
Belize Electric Company Limited Interested Party
AMENDED NOTICE OF APPLICATION
The Parties:
The Applicant is the Belize Institute of Environmental Law and Policy acting on behalf of itself and acting on behalf of people and communities downstream of said projects it is a company limited by guarantee registered under the Companies Act, chapter 250 of the Laws of Belize, Revised Edition, 2003, whose registered address is whose 19 Buena Vista Street, San Ignacio, Cayo District, Belize.
The First Respondent is the Chief Environmental Officer of the Department of the Environment, a Department within the Ministry of Natural Resources and the Environment. The Respondent’s address is Department of the Environment, 10-12 Ambergris Street, Belmopan City, Cayo District, Belize.
The Second Respondent is the Attorney General of Belize of the Attorney General’s Ministry, Belmopan City, Cayo District, Belize. The Second Respondent is made a party by Order of the Court.
The First Interested Party is the Director of Health Services, a Department within the Ministry of Health. The Second Interested Party’s address is Office of the Director of Health Services, Ministry of Health, East Block Building, Belmopan City, Cayo District, Belize.
The Second Interested Party is the National Emergency Management Organization (NEMO) who has the responsibility for the District Coordinator of District Emergency Management Organization (DEMO). The Third Interested Party’s address is National Emergency Management Organization, NEMO Headquarters, Belmopan City, Belize.
The Third Interested Party is the National Meteorological Service. The Fourth Interested Party’s address is the National Meteorology Service, Philip Goldson International Airport, P.O. Box 717, Belize City, Belize
The Fourth Interested Party the Belize Electric Company Limited (BECOL), is a company registered under the Companies Act, chapter 250 of the Laws of Belize, R.E. 2003 whose registered address is 2 ½ Miles Northern Hwy, Belize City, Belize. BECOL is the owner/operator of two dams on the Macal River, Cayo District, Belize, and the developer of the Vaca Hydroelectric Project, also located in the Cayo District, Belize. BECOL is made a party by Order of the Court.
The Applicant applies to the Court for an order for: –
(a) An injunction that all work cease on the construction of the Vaca Hydroelectric Facility until such time as the terms of the Environmental Compliance Plan are met and all information be given to the Applicant and the public.
(b) Permission to apply for Judicial Review by way of a writ of mandamus directed to the Chief Environmental Officer of the Department of the Environment, a department under the Ministry of Natural Resources and the Environment, requiring the Chief Environmental Officer to carry out the directive of the Environmental Compliance Plan for the Macal River Upstream Storage Facility (MRSUF), known as the Chalillo Dam; and to have Belize Electric Company Limited (BECOL) put in place an Dam Break Emergency Preparedness Plan, a public awareness program on the plan, and a public awareness program on the water quality and safety issues related to mercury levels in the fish of the Macal River as required by said Environmental Compliance Plan, signed April 5, 2002. The relevant portions of the ECP appear below:
3.04 BECOL shall prepare an Emergency Preparedness Plan in consultation with appropriate stakeholders including inter alia, NEMO, DEMO and CEMO. This plan must be in place before the completion of the MRUSF. BECOL will provide the meteorological office with digital or analog signals for at least three threshold reservoir levels (Alert, Warning and Emergency Phases). These signals would be relayed to the meteorological office using NOAA satellite, mentioned in 3.-3.4, for immediate transmission and dissemination.
3.06 As an integral component of the Flash Flood Early Warning System, BECOL shall establish the necessary communication to relay a Dam Break Flash Flood warning (as determined in 3.04) to target communities along the lower Macal and Belize river watersheds. The DAM BREAK Early Warning System shall be in place at completion of the MRUSF. It is imperative that routine testing or simulation be conducted to test the effectiveness of the System, especially during the rainy season.
Public Awareness/Education
8.24 After the signing of this compliance plan, BECOL shall commence a series of public information sessions to inform the general public of the information contained in the final EIA report and the conditions under which environmental clearance has been issued. A series of at least four (4) sessions shall be held within a six (6) month period in different areas of the country. A program for this requirement shall be developed by BECOL and submitted to the DOE for its approval. The approved program and its schedule shall be advertised at least two (2) weeks consecutively in two of the most widely circulated newspapers in the country and announced publicly on the radio. The program shall ensure that these sessions shall be held in San Ignacio and three other major populated areas of the country.
Mercury Risk Management
To prevent potential health effects to fish consumers, a risk management program will be put in place during the period of elevated mercury levels (i.e., for five years or until background levels are achieved). The program will be designed by BECOL in liaison with the DOE, Fisheries Department and the Public Health Bureau. The following will be conducted:
8.26 Monitoring of mercury levels in fish, in particular focusing on species consumed by local populations. Collection of fish samples shall be done at least three (3) times per year and the number of fishes collected shall be in accordance with acceptable statistical principles;
8.27 Sampling shall take place in the reservoir area, the river section between the MRUSF and Mollejon, and downstream from Mollejon;
8.28 The collection of samples, for the analysis by independent laboratories, shall be sub-contracted to an independent local consultant under the supervision of the Fisheries Department. The independent reports of both the local consultant and independent laboratories doing the bioassays shall be provided to BECOL for submission to both the Fisheries Department, the Public Health Bureau and DOE;
8.29 An information program explaining the health risks associated with the consumption of fish contaminated with the high levels of mercury shall be developed and disseminated to the local population. The public information program associated with the monitoring of mercury levels shall use the following means of information dissemination: town hall meetings, press releases, meetings with health officials and radio and local cable television communications. Fish consumption advisories ensuring safe mercury exposures to consumers shall also be done via radio at that time.
POST DEVELOPMENT REVIEW
After the construction period, the exercising of sound environmental ethic shall not
end, but rather provisions shall be made for the monitoring of all facilities in the
post-construction period. A system shall be put in place for reporting negative
impacts as well as a means of co-opting project proponents to implement corrective
mitigation measures where the need arises.
Additional monitoring shall be carried out to ensure that the various pollution
control features and facilities installed are functioning and maintained properly.
(c) A declaration that it is unlawful for the Respondent to refuse to monitor and enforce the Environmental Compliance Plan for the Macal River Upstream Storage Facility (MRSUF), known as the Chalillo Dam
A Draft of the order the Applicant seeks is attached.
The grounds of the Application are as follows: –
(1) The Applicant as a registered company and a not for profit organization whose objects include: the use of judicial means to pressure public authorities and government agencies to carry out statutory duties relating to environmental protection and preservation is acting in the public interest on behalf of the people and communities who are directly and indirectly effected by the Respondent’s failure to act.
(2) (a) The Respondent’s inaction and unlawful refusal to enforce the Environmental Compliance Plan places the downstream people and communities in danger from imminent harm if there is a dam break. Furthermore, there is the danger of harm due to the lack of knowledge of possible hazards related to the water and mercury in the Macal River.
(b) The Applicant, acting on behalf of itself and other similarly situated people, groups and communities of the area are being denied their “fundamental rights and freedoms [of] life, liberty, security of the person and the protection of the law;… protection for his family, his personal property …[and]…protection from arbitrary deprivation of property” pursuant to The Belize Constitution Act, Chapter 4 of the Substantive Laws of Belize, Revised Edition 2003.
Furthermore, the preamble of the Belize Constitution states that Belize is “founded upon principles which acknowledge the supremacy of God, faith in human rights and fundamental freedoms; the position of the family in a society of free men and free institutions, the dignity of the human person…” The preamble further says that the Belizean people require policies of state, which, among other things, “…protects the rights of the individual to life liberty and the pursuit of happiness; which preserve the right of the individual to the ownership of private property and the right to operate private businesses; which prohibit the exploitation of man by man or by the state; which ensure a just system of social security and welfare; which protect the environment...”
(c) The Respondent’s failure to enforce the provisions of the Environmental Compliance Plan for the Chalillo Dam is unlawful and blatantly disregards their Constitutionally mandated duty to protect the environment as well as the mandated role of the Department of the Environment to protect the environment and mitigate damage, the Environmental Protection Act, Chapter 328 of the Laws of Belize, R.E. 2003.
(d) The Respondent’s unlawful conduct amounts to a procedural impropriety in that he has failed to uphold his obligations and, under the Supreme Court Rules, 2005, 56.1 (3)(c), a remedy can be sought “for requiring performance of a public duty, including a duty to make a decision or determination …” The Respondent expressly refused to carry out the directive to monitor and enforce compliance with the ECP resulting in endangerment to the Applicant on behalf of itself and other similarly situated people, groups and communities of the area. The Respondent has a duty to act fairly and follow the prescriptions of the Belize Constitution, the supreme law of Belize and the Terms of the Environmental Compliance Plan (ECP). Which is a “legally binding document developed by the Department of Environment as defined in Regulation 6(c) consisting of a set of legally binding environmental conditions, guidelines, policies and restrictions which the developer or his representative agrees to in writing to abide by as conditions for project approval[,]”the Environmental Protection Act, Chapter 328 of the Laws of Belize, R.E. 2000 as amended by Statutory Instrument No. 24 of 2007.
(3) The refusal to monitor and enforce the Environmental Compliance Plan (ECP) is contrary to law. In refusing to carry out his duty, the Respondent has not acted fairly and as a result the Applicant and other similarly situated people, groups and communities of the area will suffer irreparable harm.
An affidavit in support of this Application accompanies this Application.
No alternative form of redress exists.
The Applicant is well within the “as early as possible and in any case not later than three months” time limit for an application for permission for Judicial Review of the inaction of the Chief Environmental Officer since the 30th of May 2007 announcement of the construction of the Vaca Hydroelectric Facility and the commencement of the 2007
hurricane season on 1 June exacerbates the danger of the Respondent’s failure to act.
Dated the day of July 2007.
This Amended Application is filed by the Belize Institute of Environmental Law and Policy (BELPO) per Candy Gonzalez, Vice President. The Applicant organization’s address for purpose of service is 1 Eyre Street, Belize City, Belize.
I Candy Gonzalez certify that I believe that the facts stated in this Application are true.
Signed:
__________________________
Candy Gonzalez, Vice President
for Belize Institute of Environmental Law and Policy (BELPO)
