Member Article

In the recent judgment of John Mussington & Anor v. Development Control Authority & Others (Antigua and Barbuda) [2024] UKPC 3, the Judicial Committee of the Privy Council (“JCPC”) found that the appellants had standing to challenge the construction of an airstrip in Bermuda. This conclusion was based on several factors, namely the appellants’ background, their knowledge in the field, their status as local residents, and their experience in environmental assessments.

This decision overturned the dismissal of the appellants' application for judicial review by the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda). The JCPC found that the test for determination of standing adopted by the court was a too narrow approach to the issue of standing.

The JCPC emphasized that in applications for judicial review involving environmental matters, it is not necessary for the applicant to demonstrate expertise in the subject matter. Rather, demonstrating some knowledge or concern for the subject matter suffices.

This judgment underscores a prevailing trend towards a more liberal approach to standing, potentially broadening the availability of remedies in environmental litigation.

As far as Mauritius is concerned, the JCPC is currently considering the appeal of the Ministry of Environment, Solid Waste Management and Climate Change(the “Ministry”) against the decision of the Mauritius Supreme Court in the case of Eco-Sud v The Minister of Environment, Solid Waste Management and Climate Change 2023 SCJ 284 (“Eco-Sud”). While the case of Mussington and that of Eco-Sud involve different procedural and statutory contexts, they are interconnected by their focus on the issue of standing in environmental and climate litigation.

In summary, the factual background in Eco-Sud is a challenge by a climate activist group of the grant by the Ministry of an Environment Impact Assessment (“EIA”) Licence to a real estate promoter proposing to undertake a development under the Smart City Scheme in the south-eastern part of Mauritius. 

An EIA is a study conducted by the promoter which identifies, predicts and assesses the environmental consequences of a proposed development. It evaluates the expected effects on the natural environment, as well as the expected social, cultural, economic and health impacts of the proposed project. It is only after the submission of an EIA report to the satisfaction of the Director of Environment that an EIA Licence is issued. This licence is open to challenge under section 54(2) of the Environment Protection Act (the “EPA”).

In Eco-Sud, the JCPC will have to determine whether the Supreme Court erred in adopting a non-restrictive approach when assessing whether a party has standing to bring an appeal under section 54(2) of the EPA.

The wording of this enactment suggests that a person challenging the grant of an EIA Licence has to show that it is both an aggrieved party and that it is likely to suffer undue prejudice from the decision of the authority to grant an EIA licence. The judgment in Eco-Sud however provides that: “‘Standing’ to bring an appeal under Section 54(2) of the EPA will exist where an appellant can show that he/it has a sufficient interest in the act or decision that he/it wishes to challenge or where he/it can establish that he/it is personally affected or substantially and unduly prejudiced in his/its right or interest…"

The forthcoming decision of the JCPC in the appeal of Eco-Sud carries important implications for the future landscape of environmental and climate litigation in Mauritius; a setting aside of the appeal may potentially broaden the jurisdiction of the Environmental and Land Use Appeal Tribunal.

 

Shrivan Dabee
ENS Mauritius Barrister Executive
[email protected]

 

Céline Bellouard

ENS Mauritius Barrister Associate

[email protected]