Anand Beharrylal QC leads in successful environmental claim in the High Court of Trinidad & Tobago

Anand was instructed by the preeminent environmental NGO in Trinidad and Tobago Fisherman and Friends of the Sea (‘FFOS’) in a claim concerning public access to environmental impact assessments (‘EIAs’) held by the Environmental Management Authority (‘EMA’) on its national register. FFOS is a non-profit company which campaigns for the protection of the environment and the promotion of sustainable development, sound environmental management, consultation, transparency and community empowerment throughout the Caribbean and internationally. The EMA is a statutorily appointed guardian of the environment in Trinidad and Tobago with its general functions being the development and implementation of policies and programmes for effective management and wise use of the environment; promoting educational and public awareness programmes on the environment; developing and establishing national environmental standards and criteria; monitoring compliance with standards; criteria and programmes as it relates to the environment and taking appropriate action for the prevention and control of pollution and conservation of the environment.

The EIA process is an interdisciplinary and multistep procedure to ensure that environmental considerations are included in decisions regarding projects that may impact the environment. Simply defined, the EIA process helps identify the possible environmental effects of a proposed activity and how those impacts can be mitigated. The purpose of the EIA process is to inform decision-makers and the public of the environmental consequences of implementing a proposed project. The EIA document (often thousands of pages in length) itself is a technical tool that identifies, predicts, and analyses impacts on the physical environment, as well as social, cultural, and health impacts. If the EIA process is successful, it identifies alternatives and mitigation measures to reduce the environmental impact of a proposed project. The EIA process also serves an important procedural role in the overall decision-making process by promoting transparency and public involvement (ELaw).

The basis for the claim arose in 2018 from the decision, reasons and policy of the EMA not to allow any person(s) to obtain a complete copy of an EIA, whether in hard copy or digitally. Further, restrictions were placed so that any copying permitted was limited to 10% percent of the EIA, on the basis that the EIAs are subject to third party copyright in Trinidad and Tobago. FFOS’s claim was that the EMA has a statutory duty to gather information about the environment and that duty also encompasses the ability to make and share copies of environmental impact assessments and their supporting studies and reports. In addition, that the good intentions of the environmental activists including on behalf of the public good, is or should be sufficient to pre-empt or preclude any restrictions posed by copyright.

The claim involved a complex series of questions of law involving statutory interpretation, ultra and intra vires policy, duty of candour of public authorities, intellectual property, third party copyright, with the overarching issue in the claim being whether the EMA could claim third party copyright as a justification for not providing whole copies of an EIA, in light of its role, functions and obligations pursuant to statute and policy.

On 21st January 2021, the High Court delivered judgment refuting the claim submitted by the EMA that access to EIAs on its national register are restricted due to third party copyright, thereby allowing the public, NGOs like FFOS and stakeholders to acquire full copies of EIAs on payment of the prescribed fee. The court also endorsed FFOS’s approach that EIAs should be made accessible digitally consistent with modern standards of protecting the environment. The judgment counters the movement to restrict public access to environmental information and in particular EIAs and is the most recent decision in Commonwealth and Caribbean jurisprudence on the subject of access to EIAs.

Anand led Ganesh Saroop instructed by Alvin Pariagsingh (Trinidad).

For further details:

• Trinidad and Tobago Express
• Trinidad and Tobago Guardian
• Trinidad and Tobago Newsday