A. Belizean government denies approving project; Decision expected in September
On July 31st, the Belize’s Supreme Court completed eight days of hearings in a lawsuit brought by environmental groups challenging the government’s rubber-stamp approval of the proposed Chalillo hydro-electric dam. The case culminates more than three years of opposition to plans to build the dam, and even some proponents of the project acknowledged that it represents a turning-point for the new Belizean democracy; it is the first environmental lawsuit in the country, and the first major challenge to the government by a citizen’s group since Belize’s independence 20 years ago.
Arguments came to a temporary halt in the morning of the last day, as concerned Belizeans arrived to hear the case. The court became silent as, one after another, the humble residents of communities along the Macal River –Cristo Rey, Santa Elena and the town of San Ignacio—filed into the courtroom. Most had never been inside a courtroom, and during the midday recess Chief Justice Abdullah Conteh, who presided over the case, asked who the visitors were and offered to explain the proceeding to them.
Lois Young Barrow and Dean Barrow, lawyers for the Belize Alliance of Conservation NGO’s (BACONGO), presented a compelling case that the government violated the country’s laws in reviewing the environmental impact assessment for the dam and in approving the project. The case became stronger as the government scrambled in court to cover-up major procedural and substantive flaws — in fact going so far as to deny that the government had ever given approval for the dam.
A decision in the case is expected in September, after a court recess.
The suit has proven to be a major setback for Fortis, Inc., the Newfoundland-based owner of Belize Electricity Company (BECOL), which oversaw government-sponsored construction on an access road to the dam site in January and had announced to shareholders that construction on the dam would begin this year. Construction on the road was halted when the case was filed in February and has continued only sporadically since. The government and BECOL hired nearly every top lawyer in the country to fight the cases brought by BACONGO: the solicitor general and at least four other lawyers, representing three of perhaps ten top firms in Belize, have faced off against BACONGO’s lawyers in these suits.
Chief Justice Conteh, originally from Sierra Leone, has presided over Belize’s Supreme Court for approximately a year and appeared keenly interested and fair-minded during the arguments in the case, which stretched over three weeks.
Belize’s legal system is based on British Commonwealth caselaw and practice; the final court of appeal is the Privy Council in England. As such, the case may also set precedent within the British Commonwealth: It is one of the first challenges in any Commonwealth country to the adequacy of an environmental assessment; most previous cases focus simply on whether an assessment should be required in the first place.
B. Illegality of the EIA Review and Approval of the Dam
In November 2001, the Belize Department of the Environment rushed through a review of the environmental assessment report for the dam. The National Environmental Appraisal Committee (NEAC) , chaired by the head of the Department, is responsible for reviewing EIAs. In the case of the proposed Chalillo Dam, NEAC ignored its own members’ awareness of the major flaws, gaps, and distortions in the report and voted to give the project the green light. The Minutes of NEAC’s meetings leading up to its decision on November 9 are rife with comments on the incomplete information in the report, lack of mitigation measures, wrong information on geology, the need to conduct further studies on archaeology and more. Despite this, and under pressure from the head of the committee to come to a quick decision, NEAC voted to approve the environmental assessment and the project. BACONGO filed suit after construction on a road to the dam began illegally in January.
In the case, BACONGO argued that:
1- The environmental assessment was inadequate and provided false information. The review committee (NEAC) pointed out dozens of failings of the environmental assessment. The environmental report, and the NEAC itself said that more studies needed to be done on geology, archaeology, wildlife, hydrology and economics. According to the law, all of these studies need to be done before a decision is made on the project.
2- NEAC failed to consider public comments, flooding of National Park before making its decision—Many Belizeans, including top scientists in the country and international groups including NRDC, wrote to the committee with their concerns about the dam. The committee did not consider or discuss these comments. The government claimed that the committee knew that the comments were in a folder at the Department of Environment, but didn’t actually have to read the comments to consider them. The dam would flood parts of the Chiquibul National Park, and the committee failed to consider this and the fact that flooding of the Park would be illegal.
3- NEAC and the Department of Environment didn’t follow legal requirements—The law requires the company and government to agree in writing on a “Terms of Reference” before beginning the studies—and this was not done. The Terms of Reference sets out the expectations for the environmental assessment report. Once the report is submitted to the government, the committee is supposed to compare the report to the Terms of Reference to see if it meets all the requirements. In this case, the government and Fortis could not even show that a final Terms of Reference existed. It is clear that the committee did not follow the law, and that its review was completely ad hoc.
4- The decision was taken without required public hearings. Under Belizean law, public hearings should be held to discuss the environmental assessment for a project of this size and potential impact. The government committee decided to hold public hearings only after its decision, when it was too late for the hearings to be meaningful.
5- NEAC, the government review committee, was biased. On November 6, the Prime Minister announced on national television that he hoped his advocacy “would influence” NEAC, which is supposedly an impartial technical group. Three days later, the committee approved the 1500-page environmental assessment and the project, despite deep misgivings reflected in the minutes of the committee meetings. NEAC reviewed the 1500 page environmental assessment in only three meetings, two of which were held back-to-back after the Prime Minister’s speech. NEAC consists of 9 government and 2 non-governmental members, and all government members voted in favor of the project. In February, the head of the committee signed a statement on behalf of the government saying that the government’s interests would be harmed by not allowing the project to go ahead.
Another lawsuit filed by BACONGO against the Public Utilities Commission (PUC) forced the disclosure of contracts between the government and Fortis-owned Belize Electricity Company which purport to waive all of Belize’s environmental laws for the dam and would put Belize into debt for generations to pay off the dam. As part of this case, it became clear that Belize Electricity Company does not have proper regulatory permission to build the dam—or even a basic license to operate. Judge Blackman, who presided over the case, decided that the action was “premature”, since the government claimed it had not approved the dam. BACONGO has appealed this ruling.
C. Canadian Government Releases Documents on Chalillo Controversy
Internal documents obtained from the Canadian government—which funded some of the EIA studies on the Chalillo dam—reveal a new policy against funding such studies for proposed projects in National Parks. Toronto’s Probe International obtained a memo from the Canadian International Development Agency (CIDA), stating that as of March 2002, CIDA decided it would no longer support hydro studies or development in national parks. CIDA has publicly defended its decision to fund the studies on the Chalillo project— despite the fact that that the dam will flood part of Belize's Chiquibul National Park.
Other documents obtained recently show that the contractor who conducted the flawed environmental assessment is now attempting to distance itself from the project. AMEC, based in England, with offices in Canada, had hoped to obtain millions of dollars in contracts for implementation of the project it was approved. In a February, 2002 report to CIDA, AMEC recommends that, in the future, environmental assessments should be conducted by contractors who have no connection to possible contracts for the implementation of the project. “Ideally, an EIA should be performed by third parties with no arms-length ties whatsoever to any party who can be said to have a vested interest in project implementation…AMEC never expected to be dragged along with CIDA in such an ambiguous and controversial situation. Looking back, it might have been wiser at the very beginning to advise the client [Fortis] to raise EIA financing from their own means because the project was susceptible to generate important opposition.”
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