Mesnil Investments Co. Ltd. v Environment Appeal Tribunal
& Anor
2000 SCJ 172
RECORD NO. 66944
IN THE SUPREME COURT OF MAURITIUS
In the matter of:
Mesnil Investments Co. Ltd.
Appellant
v
1. Environment Appeal Tribunal
2. Minister of the Environment,
Human Resource, Development
and Employment
Respondents
JUDGMENT
The appellant is appealing to this Court, pursuant to section
49(1) of the Environment Protection Act 1991, (called “the Act”) against the
decision of the first respondent, as being erroneous in law, which affirmed on
appeal that of the second respondent refusing the grant of an Environment
Impact Assessment (EIA) licence to the appellant in respect of a morcellement
project consisting of the subdivision of its portion of agricultural land under
sugar cane cultivation of an extent of 44.8251 hectares situate at Trianon
(called “the land in lite”) into 96 plots for agricultural purposes.
It is not in dispute that the appellant had to obtain under the
Act an EIA licence in respect of its morcellement project and that the second
respondent’s decision was reached on the sole ground that “it is contrary to
the Government’s Policy of dividing cane fields into smaller lots which will be
owned/managed by a large number of persons and lead to counter productivity
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and adverse impact on national economy” after having found the following
facts proved and/or admitted –
(a) The land in lite has been under cane plantation for 25
years and it enjoys climatic conditions which are
favourable for sugar cane cultivation.
(b) The land in lite is not rocky and there is no water problem
being given that two rivers cross the land and it is
situated in an area which benefits from rainfall.
(c) The proposed morcellement is environmentally friendly
and the present infrastructures will not be affected at all.
(d) About 300 to 400 tons of sugar are obtained from cane
cultivation on the land in lite.
(e) If the land is subdivided into 96 lots as per the proposed
project and managed by small planters, the yield in
sugar plantation will decrease approximately by some 15
to 25%.
(f) Government has to satisfy presently certain export
commitments towards the European Union, the United
States and under the Special Preferential Sugar
Agreement.
(g) For some three years Mauritius has been importing
about 40,000 tons of sugar for its local consumption as
its sugar production can scarcely meet its export
commitment.
(h) According to a survey carried out by the MSIRI, small
plots of land are more vulnerable to socio-economic
problems like inheritance, land speculation and housing
developments. There has been a decline since 1990 in
the area cultivated with canes and over the last 15 years
some 7100 hectares of sugar cane land belonging to non-
millers have been abandoned owing to, amongst other
reasons, low returns, lack of interest, unavailability of
irrigation, problems associated with inheritance,
uneconomical plot sizes, conversion to residential use
and a shift to financially more attractive agricultural
activities.
(i) 60 of the 96 lots of the proposed project of the appellant
are less than one arpent in size.
(j) Land Area Management Units (LAMUs) set up by the
Ministry of Agriculture to help small planters have been
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slow in regrouping small planters because of problems of
irrigation and derocking and of the fact that small plots
of land are non-contiguous and as from 1999 a new
system (BMS) has been introduced.
Learned Counsel for the appellant contended in substance that
since the morcellement project of the appellant has been found to be
environmentally friendly, then the decision of the second respondent is
untenable in law, grounded as it is on a government policy, more fully
described earlier, which has no relevance to the present case, the more so as
an EIA licence had been granted to Société Mohun Ramdonee and Co. in
respect of a similar project.
Learned Counsel for both respondents referred to the preamble,
and section 14(d) and (g) of the Act to argue that both respondents were fully
justified in taking into account the policy of the government regarding the
national economy in deciding whether or not to grant an EIA licence.
Moreover, it is not known in what circumstances Société Ramdonee obtained
its EIA licence. On the assumption that an EIA licence was wrongfully
granted to Société Ramdonee in contravention of government policy, this does
not mean that the respondents should compound the wrong already done by
wrongfully granting an EIA licence to the appellant instead of pursuing the
right path.
After a perusal of the Act, we observe that -
(1) in its preamble the Act provides “for the protection and
management of the environmental assets of Mauritius so
that their capacity to sustain the society and its
development remains unimpaired and to foster harmony
between quality of life, environmental protection and
sustainable development for the present and future
generations;
(2) in section 14 an EIA shall contain a true statement and
description of the social, economic and cultural effects
that undertaking is likely to have on people and society
[paragraph (d)] and the irreversible and irretrievable
commitments of resources which will be involved by the
undertaking, if implemented in the matter proposed by
the proponent [paragraph (g)];
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(3) in section 18, the Minister may, where an EIA provides
insufficient information to determine the scope or the
impact of the undertaking on the environment, people or
society, disapprove the EIA - vide paragraph (c);
(4) in section 19, it is stated that in considering approval of
an EIA, account shall be taken -
(a) ...
(b) ...
(c) the measures proposed to avoid or minimise
adverse effects on the environment, people
or society (the underlining is ours).
It is clear, therefore, from the language and broad objects of the
Act already mentioned, that the protection of the environment is an
all-embracing concept which not only deals with environmental issues
proper but also with public interest issues or issues affecting the welfare or
economy of a state.
Consequently, both respondents were right in giving paramount
consideration to the government’s policy of not allowing large sugar canes
fields to be divided into smaller lots because of its adverse impact on
productivity and on the national economy, the more so as –
(a) already indicated in section 14 (d) of the Act, both
respondents had to assess “the social and economic
effects” the morcellement project of the appellant would
have on the people and society of Mauritius; and
(b) pertinently stated in La Compagnie Sucrière de Bel
Ombre Ltée v Government of Mauritius and 9 other
cases (1994) MR 173 –
“It is well known that historically the sugar industry
has been the main pillar of this country’s economy,
affecting the well-being not only of all the partners
in the industry but also of almost everyone else.
For this reason, the industry, as a whole, has been
profoundly reorganised over the years with a view
to achieving progressively the highest degree of
efficiency, with equity and fairness for all partners
in the industry, even if this entails the statutory
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regulation of its operations by, in particular, limiting
and controlling individual contractual freedom”.
With regard to the EIA licence granted to Société Ramdonee, in
respect of a morcellement project similar to that of the appellant, we are in
the dark, just like the first respondent, as to all the circumstances
surrounding that project. Learned Counsel for the appellant who had
appeared before the first respondent could have elicited relevant information
about that project from Mr Heeramun posted at the EIA Division but he chose
not to cross-examine him on that issue.
In any event, as correctly submitted by learned Counsel for the
respondents, even on the assumption that there had been a mistake in
granting an EIA licence to Société Ramdonee by the second respondent, the
first respondent was right to have been on its guard against making a second
mistake in granting the EIA licence sought by the appellant, in breach of the
provisions of the Act.
For all the reasons given, we dismiss the appeal, with costs.
A.G. PILLAY
CHIEF JUSTICE
Y.K.J. YEUNG SIK YUEN
SENIOR PUISNE JUDGE
12 June 2000
Judgment delivered by Hon. A.G. Pillay, Chief Justice
For appellant: Mrs Attorney S. Ramasawmy
Mr Patrice de Speville, of Counsel
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For respondents: State Attorney
Mr B. Madhub, Principal State Counsel
