Privy Council reviews Chalillo law

The Island Newspaper, Ambergris Caye, Belize            Vol. 13, No. 31            August 14, 2003

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In a landmark environmental lawsuit, a three judge panel held a five-hour hearing at the Privy Council in London on a petition to stop construction on the controversial proposed Chalillo hydro-electric dam on the Macal River in Belize's rain-forest.The Belize Alliance of Conservation NGOs (BACONGO) asked the Court for an injunction to prevent harm to wildlife, pending a full hearing on its challenge to the government's environmental approval for the project.

    After retiring for 20 minutes, judges first announced their preliminary decisions to order an expedited hearing in December on the full case and to grant BACONGO's request to admit two new parties to the case. The judges then said that they would issue their decision and opinion on the requested injunction in August.

    If the court grants the injunction, Fortis/BECOL would have to stop any construction on the dam until the hearing in December on whether the environmental approval for the dam was given illegally.If the court rules in favor of BACONGO at that hearing, Fortis/BECOL may not be allowed to continue with construction until it conducts basic geology, wildlife and archaeological studies of the dam.

    The judges set December 3rd and 4th as the dates for a full hearing of BACONGO's case. In addition, they allowed two business owners to join BACONGO on the case: Phyllis Dart and Godsman Ellis are owners of tourism businesses that depend on the Macal River, and would be affected by the dam.They will be challenging the new Macal River Hydroelectricity Development Act which, they say, violates Belize's Constitution and their civil rights.

    The case today was unprecedented in many respects, and the judges were riveted by the presentation by BACONGO's lead attorney at the Privy Council, Richard Clayton, QC. It is the first environmental case in the history of the Privy Council and the first time the Privy Council has considered whether it can give an injunction. The court has granted many "stays-of-execution" for death row prisoners, and BACONGO argued that the same principles apply to stop this project from causing potentially irreversible damage, to the environment.

    The judges strongly questioned the lawyers for the government and BECOL, noting from the beginning the "unusual" special relationship between the two parties.Edward Fitzgerald, who was representing the government, was questioned about the new Macal River Hydro-electricity Development Act. The act says that the Chalillo project can go ahead regardless of any court's decision.The President of the court was concerned that the new law attempts to prevent the Court's decision from being acted upon.In a dramatic turnabout, the Attorney General of Belize gave assurances that the government would abide by the ruling of the court - in apparent contradiction to the recently passed law.

    The judges also expressed concerns about the contract for the dam, between the Government of Belize and the subsidiary of Canadian-based Fortis.The President said that this case was special because the company "has the benefit of the provisions of the Third Master Agreement that I've never seen before" in any contracts.These provisions include a guarantee that the government could by-pass any law in order to allow the dam to be built, and would pay for any damages that Fortis claims as a result of any lawsuits.

    Located onDowning Street next to the British Prime Minister's residence at No. 10, the Privy Council has been in existence since at least 1540.It's Judicial Committee, which consists of many leading lawyers and judges, (Law Lords), serves as the final court of appeal for Belize and a number of other Commonwealth countries. The hearing today was held before a three-judge panel; and in December, five judges will preside over the full hearing.

    The case has drawn a good deal of interest in the UK and elsewhere, and BACONGO has been able to enlist some of England's leading attorneys:Richard Clayton has brought many of the fundamental environmental law cases in England, and recently completed a widely acclaimed book on human rights law.He was joined by David Wolfe, Richard Buxton, and Lois Young who developed the case and carried through Belize's Supreme Court and Court of Appeals.Cristopher Forsyth, author of a leading text on judicial review of government decisions, and a Constitutional scholar at Cambridge, advised BACONGO regarding the (un)constitutionality of the Macal River Hydroelectricity Development Act.

    Belize's Attorney General (Godfrey Smith) and Solicitor General (Elson Kasaeke) were at the hearing, as well as Fortis/BECOL attorney Michael Young from Belize.

    Information received from
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