Ministry of Environment, Energy and Climate Change & Others v Woodlands Holdings Limited & Anor (SCA CL 01/2023) [2023] (Arising in CP 04/2021) ((SCA CL 01/2023) [2023] (Arising in CP 04/2021)) [2023] SCCA 57 (18 December 2023)

COURT OF APPEAL OF SEYCHELLES ______________________________________________________________________________ Reportable [2023] (18 December 2023) SCA CL 01/2023 (Arising in CP 04/2021) 1st Appellant 2nd Appellant 3rd Appellant Ministry of Environment, Energy and Climate Change Ministry of Health Attorney General (rep. by Mr. Vincent S. Perera and Miss Corine Rose) And Woodlands Holdings Limited 1st Respondent 2nd Respondent Nabil Elmasry (rep. by Mr Frank Elizabeth) _____________________________________________________________________________ Neutral Citation: Ministry of Environment, Energy and Climate Change & Others v Woodlands Holdings Limited & Anor (SCA CL 01/2023) [2023] (Arising in CP 04/2021) (18 December 2023) Fernando President, Gunesh-Balaghee, De Silva, JJA 5 December 2023 An appeal against the judgment of the Constitutional Court in respect of the answers provided to the three questions referred to it for determination by the Supreme Court under Article 46(7) of the Constitution, in relation to the interpretation of Article 38 of the Constitution and the declarations the Constitutional Court made at paragraph 49 of its judgment. Before: Heard: Summary: 18 December 2023 Delivered: ______________________________________________________________________________ ORDER The obligation entrenched in Article 38 of the Constitution extends to the State taking executive, legislative and administrative measures in ensuring that private citizens do not pollute the environment. The State is under an obligation to take steps to clean up pollution caused to public places such as rivers and beaches. The State may in certain instances be liable to its citizens in damages where it fails to do so. The Supreme Court is directed to determine the claim of the Respondents in accordance with the answers given by this Court and upon a consideration of the evidence that may be led before it by the parties. ______________________________________________________________________________ JUDGMENT ______________________________________________________________________________ DE SILVA JA (Fernando President, Gunesh-Balaghee, JA concurring) 1. This is an appeal against the decision of the Constitutional Court handed down on 30 March 2023. This was consequent to a referral made by the Supreme Court pursuant to Article 46(7) of the Constitution. The referral submitted the following questions for determination by the Constitutional Court: (a) Whether the obligation entrenched in Article 38 will extend to the State ensuring that private citizens do not pollute the environment? (b) Whether there is an obligation on the State to take steps to clean up any pollution caused by such citizens? (c) Whether failure to do so may render the State liable to its citizens in damages? 2. The Constitutional Court answered all three questions in the affirmative. Furthermore, the Court made the following declaratory pronouncements: (a) It is declared that the poor water quality in the Fairview Estate La Misere Area is in breach of resident’s Article 38 constitutional right to an environment that is not harmful to their health and well-being. (b) It is declared that the State has a legal duty to clean the contamination under section 42(5) of the Environment Protection Act, 2016 (“EPA”) to implement and enforce the provisions of Article 38 of the Constitution. (c) It is declared that the Respondents (herein the Appellants) have unreasonably delayed in conducting the investigation in terms of section 61 of the EPA and to resolve this matter. 3. The Appellants are impugning the answers given to the questions referred as well as the declarations made. Jurisdiction of the Constitutional Court 4. I will begin by examining the validity of the three declaratory orders. The reference was made pursuant to Article 46(7) of the Constitution which reads as follows: “46(7). Where in the course of any proceedings in any court, other than the Constitutional Court or the Court of Appeal, a question arises with regard to whether there has been or is likely to be a contravention of the Charter, the court shall, if it is satisfied that the question is not frivolous or vexatious or has already been the subject of a decision of the Constitutional Court or the Court of Appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court.” (Emphasis added) 5. The only question that can be referred to the Constitutional Court is whether there has been or is likely to be a contravention of the Charter which is a reference to the Seychelles Charter of Fundamental Human Rights and Freedoms. 6. The Constitutional Court proceeded to make the three declaratory orders relying on Article 46(5) of the Constitution which reads as follows: “46(5). Upon hearing of an application under clause (1) the Constitutional Court may— (a) declare any act or omission which is the subject of the application to be a contravention of the Charter; (b) declare any law or the provision of any law which contravenes the Charter void; (c) make such declaration or order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Charter and disposing of all the issues relating to the application; (d) award any damages for the purpose of compensating the person concerned for any damages suffered; (e) make such additional order under this Constitution or as may be prescribed by law.” (Emphasis added) 7. Accordingly, the power to make declaratory orders pursuant to Articles 46(5)(a), (b) and (c) is qualified by the words hearing of an application under clause (1) which is a reference to an application that a person may make to the Constitutional Court claiming that a provision of the Charter has been or is likely to be contravened. The Constitutional Court does not have power to make such declaratory orders in a reference made pursuant to Article 46(7) of the Constitution. This is because the reference is made during the course of any proceeding in any court. The substantive matter is yet to be determined by that court. 8. For the foregoing reasons, I hold that the three declaratory orders made by the Constitutional Court set out in paragraph 49 of the judgment of the Constitutional Court is ultra vires the power of the Constitutional Court. Pursuant to Rule 31(5) of the Seychelles Court of Appeal Rules 2005, I make order setting aside that part of the judgment. Article 38 of the Constitution 9. The answers to the three questions referred to the Constitutional Court is based on the interpretation of Article 38 of the Constitution which reads as follows: “38. The State recognises the right of every person to live in and enjoy a clean, healthy and ecologically balanced environment and with a view to ensuring the effective realisation of this right the State undertakes— (a) to take measures to promote the protection, preservation and improvement of the environment; (b) to ensure a sustainable socio-economic development of Seychelles by a judicious use and management of the resources of Seychelles; (c) to promote public awareness of the need to protect, preserve and improve the environment.” 10. The learned Principal State Counsel submitted that the right to a safe environment is a “third generation right”. It goes beyond the framework of individual rights to focus on collective concepts. Our attention was drawn to the difference in language between Articles 15 to 27 on one hand and Articles 28 to 39 on the other hand. It was submitted that “second generation rights” such as civil and political rights are couched in positive language while “third generation rights” such as the right to live in and enjoy a clean, healthy and ecologically balanced environment is couched in negative language. 11. To illustrate the point, it was pointed out that Article 15(1) states that everyone has a right to life and no one shall be deprived of life intentionally. Accordingly, it was submitted that what is required pursuant to Article 38 is for the State to enact the necessary laws and regulations to ensure the protection of the environment. It was submitted that duty has been carried out by enacting the Environment Protection Act 2016 (“EPA”). No positive duty was cast upon the State. 12. The learned Principal State Counsel further submitted that the Constitutional Court erred when they made the statement that an alleged failure by the Appellant to take action under the EPA could tantamount to be a breach of Article 38 of the Constitution. It was submitted that the remedy of an aggrieved person under the EPA will be either an action in judicial review or a civil claim. 13. It was submitted that the requirement to take steps to enhance or promote a right does not provide a justiciable or enforceable right. It will only enable a litigant to bring a case where the right was interfered with by a law or a policy. It was conceded that the “aspirational language” in Article 38 will create a duty to progressively realize the right in the Constitution by adopting policies and making laws which incrementally improve the realization of the right and any failure to do so could be litigated. 14. The learned counsel for the Respondents contested the position of the Appellants that the “third generation right” of the Respondents to “…live in and enjoy a clean, healthy and ecologically balanced environment…” is not justiciable. Historical Development 15. Although the right to live and enjoy a clean and healthy environment is referred to in academic discourses as a “third generation right”, it is in my view one of the fundamental, if not the most fundamental right of a human being. None of the myriad of other fundamental rights, including civil and political rights, can be meaningfully exercised by a human being in the absence of a clean and healthy environment which can sustain life. Man must live to exercise any of the fundamental or human rights bestowed upon him. A clean and healthy environment is a sine qua non for the meaningful expression of any other fundamental right or human right. 16. The importance of the need to protect the environment and the notion of trusteeship over natural resources is found in ancient canonical texts and religious teachings. Perhaps this is an indication that early civilizations appreciated the importance of a clean and healthy environment much more than we do. 17. In Encyclical Letter Laudato Si’ Praise be to you by Pope Francis it is stated (at paragraph 66): “The creation accounts in the book of Genesis contain, in their own symbolic and narrative language, profound teachings about human existence and its historical reality. They suggest that human life is grounded in three fundamental and closely intertwined relationships: with God, with our neighbour and with the earth itself. According to the Bible, these three vital relationships have been broken, both outwardly and within us. This rupture is sin. The harmony between the Creator, humanity and creation as a whole was disrupted by our presuming to take the place of God and refusing to acknowledge our creaturely limitations. This in turn distorted our mandate to “have dominion” over the earth (cf. Gen 1:28), to “till it and keep it” (Gen 2:15). As a result, the originally harmonious relationship between human beings and nature became conflictual (cf. Gen 3:17-19). It is significant that the harmony which Saint Francis of Assisi experienced with all creatures was seen as a healing of that rupture. Saint Bonaventure held that, through universal reconciliation with every creature, Saint Francis in some way returned to the state of original innocence. This is a far cry from our situation today, where sin is manifest in all its destructive power in wars, the various forms of violence and abuse, the abandonment of the most vulnerable, and attacks on nature.” 18. In Buddhism, the Kutadanta Sutta in Diga Nikaya Chapter 5 states that it is the responsibility of the government to protect trees and other organic life and that government should take active measures to provide protection to flora and fauna. 19. According to Hinduism, when a person is engaged in killing creatures, polluting wells, and ponds and tanks, and destroying gardens he goes to hell (Padmapurana, Bhoomikhanda 96.7-8). 20. Judge Weeramantry in “Tread Lightly on the Earth, Religion, The Environment and the Human Future” [Stamford Publication, 2014] cites various religious texts to emphasis that several religions speak of the need to protect the environment and follow sustainable development. He states (at page 228) “trusteeship of the universe is recognized in Islam and any violation of it by man is accountable and subject to punishment as the Qur’an states “It is He who made you trustees of the earth…Indeed your Lord’s retribution is swift, yet He is forgiving and kind (6:165).” 21. Dr. Dinesha Samararatne, Professor at the Department of Public & International Law at the Faculty of Law of the University of Colombo, Sri Lanka, in Public Trust Doctrine, The Sri Lanka Version (Democracy and Equality Programme Occasional Papers No. 1, International Center for Ethnic Studies, pp. 13-14) discusses the origin and development of the public trust doctrine in environmental law. According to Samararatne, there was a notion in Roman Law that certain natural resources must be held in trust for the public. 22. In a speech attributed to Red Indian Chief Seattle [Speech of Chief Seattle, Si’ ahl (1786- June 7,1866)], it is said “This we know- the earth does not belong to man- man belongs to the earth. This we know. All things are connected like the blood which unites one family.” 23. In Human Rights and Peace for Bangladesh vs. Bangladesh and Others [7 CLR (HCD) (2019) [67-68] it was held that the concept of ‘common properties’ (res communis), as found in the ancient Justinian Code of 530 A. D where it was stated: “by the law of nature, these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea…”, is considered as the origin of the public trust doctrine. 24. According to Justinian: “By the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea. No one, therefore is forbidden to approach the sea-shore, provided that he respects habitations, monuments, and buildings, which are not, like the sea, subject only to the law of nations” … The particular people or nation in whose territory public things lie may permit all the world to make use of them, but exercise a special jurisdiction to prevent any one from injuring them. In this light even the shore of the sea was said, though not very strictly, to be a res public: it is not the property of the particular people whose territory is adjacent to the shore, but it belongs to them to see that none of the uses of the shore are lost by the act of individuals…with the opinions of other jurists, we must understand populi Romani esse to mean “are subject to the guardianship of the Roman people”. [Sandards, Thomas Collett, The Institutes of Justinian, (3rd ed, London, 1865) at pp. 167-168]. 25. The public trust doctrine in environment law has been developed and applied both domestically and internationally to require the State to protect and preserve the environment for the benefit of present and future generations. 26. Principle 1 of the Stockholm Declaration of 1972 (Declaration of the United Nations Conference on the Human Environment), declares that “man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” 27. Principle 1 of the Rio Declaration on Environment and Development of 1992 declares that “Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” Moreover, principle 3 declares that the “right to development must be fulfilled so as to equitably meet the developmental and environmental needs of present and future generations.” 28. In his separate opinion in Hungary v. Slovakia [(1997) ICJ Reports 88] Judge Weeramantry, Vice President of the ICJ, expounded the notion of public trust over natural resources in international law and the collective ownership over natural resources. 29. A comparative study provides many examples where domestic Courts have upheld the obligation of the State to preserve the environment for present and future generations. [See for USA Illinois Central R. Co. v. Illinois (146 US 387 (1892)), San Carlos Apache Tribe v. Superior Court ex rel. Maricopa 972 P.2d 179 (Ariz.1999)], for India Mehta v. Kamal Nath (1997) 1 S. C. C. 388, Intellectuals Forum, Tirupathi v. State of A. P. and Others (2006) AIR SC 1350, Karnataka Industrial Areas Development Board v. C. Kenchappa and Others (2006) AIR SC 2038], for Sri Lanka Bulankulama and Others v. Secretary, Ministry of Industrial Development and Others (2000) 3 Sri. L. R. 243, Wijebanda v. Conservator of General Forests and Others (2009) 1 Sri. L. R. 337]. 30. I note that the terms first, second and third generation rights are used in academic literature and case law in discussing human rights. Such categorization may be useful in understanding the historical development of human rights. Nevertheless, the legal implications of recognizing any right must be determined by the constituent document which in this case is the Constitution. 31. Article 38 of the Constitution contains two important features. Firstly, the State recognizes the right of every person to live in and enjoy a clean, healthy and ecologically balanced environment. Secondly, the State gives three specific undertakings towards ensuring the effective realization of this right. The word “undertakes” in Article 38 is not a mere aspiration as was contended by the State. It is a constitutional promise given by the State to every person with a view to ensuring the effective realization of this right. 32. One such undertakings is to take measures to promote the protection, preservation and improvement of the environment. This is a positive obligation. The words measures are a reference to executive (includes administrative), legislative and judicial acts that traditionally form part and parcel of the power of the State. Thus, in terms of Article 38(a) of the Constitution, the State has a positive duty to take executive, administrative, legislative and judicial measures to promote the protection, preservation and improvement of the environment. International Obligations 33. Article 48 of the Constitution provides that the Charter on Human Rights shall be interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms and a court shall, when interpreting the provision of this Chapter, take judicial notice of: [a] the international instruments containing these obligations; [b] the reports and expression of views of bodies administering or enforcing these instruments; [c] the reports, decisions or opinions of international and regional institutions administering or enforcing Conventions on human rights and freedoms; [d] the Constitutions of other democratic States or nations and decisions of the courts of the States or nations in respect of their Constitutions. 34. In Amesbury v. Faure & Ors. (CP 06/2018) [2018] SCCC 16 (13 October 2018) the Constitutional Court held (paragraph 31) that Article 48 ‘directs’ courts to put ‘in consideration’ the above sources ‘when interpreting the provisions relating to the Charter.’ 35. In MD v. BL [2017] SCSC 196 (01 March 2017) the Supreme Court referred to Article 48 of the Constitution and held (paragraph 30) that: “Judicial notice” is thus not to render the international instruments provisions directly enforceable into Seychelles national law but to take cognisance of the international obligations of Seychelles as a signatory State.” 36. In MD v. BL (supra.) the Supreme Court applying the provisions in Article 48 of the Constitution, interpreted the applicable law in the light of the provisions in Article 2 of the Hague Convention although the Hague Convention had still not been incorporated as national law pursuant to Article 64 of the Constitution. 37. Hence, Article 48 of the Constitution enables Court to resort to the sources identified therein in interpreting the provisions in Chapter 3 and utilize those instruments, practices, or jurisprudence to interpret the scope of rights in the Charter. The interpretation must be done in such a way so as not to be inconsistent with any international obligations of Seychelles. This provision mirrors the long-standing rule of the common law that statutes must be interpreted consistent with the international obligations of the State. [See Ceylon Tobacco Company PLC v. Minister of Health and Others (C. A. 336/2012(Writ), C. A. M. 12.05.2014), Vishaka v The State of Rajasthan (1997) 6 SCC 241]. 38. Article 24 of the African Charter on Human and Peoples’ Rights (African Charter) states that “All peoples shall have the right to a general satisfactory environment favourable to their development”. In Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria (Communication No. 155/96) (Communication 155 of 1996) [2001] ACHPR 35 (27 October 2001) the African Commission on Human and Peoples Rights held that the right to a general satisfactory environment, as guaranteed under Article 24 of the African Charter or the right to a healthy environment, as it is widely known, imposes clear obligations upon a government. It requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. Article 38 of the Constitution must be interpreted in this context. 39. This interpretation is supported by the provisions in the EPA which was enacted in furtherance of the positive duty cast upon the State by Article 38 to take measures to promote the protection, preservation and improvement of the environment. Pollution by Private Citizen 40. The EPA recognizes that actions of a private party may pollute the environment and has sought to regulate such activity. 41. Section 19(1) states that no person shall, without an authorization from the Ministry, discharge or place into the ground or dispose of in the sub-soil or dig into the ground any affluent or polluting or hazardous substance or waste. 42. Section 20(1) states that no person shall, without an authorization from the Ministry, discharge any affluent or throw, deposit, or place any polluting or hazardous substance or waste or any obstructing matter into any watercourse or in the territorial waters. 43. Section 21(4) states that a person shall not, without an authorization from the Ministry granted in accordance with subsection (1) or otherwise than in accordance with such authorization (a) cause any emission in an air pollution control area, or (b) establish or operate any industrial plant in an air pollution control area. 44. These provisions exemplify the understanding of the legislature of the need to take measures to prevent private citizens polluting the environment. 45. However, the learned Principal State Counsel drew our attention to Section 42 of the EPA which reads as follows: “42.(1) Where there is an occurrence of pollution, or a likelihood of the occurrence of pollution, the Ministry may – (a) in the case of an occurrence of pollution, take such action or measures as is necessary to control or abate such pollution; (b) in the case of the likelihood of the occurrence of pollution, take such action or measures as is necessary to prevent such pollution.” 46. The learned Principal State Counsel contended there is no positive duty as the word used is may. As explained above, the duty on the State in terms of Article 38 of the Constitution is a positive duty to take executive, administrative and legislative measures to promote the protection, preservation and improvement of the environment. In the event Court accepts the submission of the learned Principal State Counsel, it will result in rendering section 42(1) of the EPA to be inconsistent with Article 38 of the Constitution. 47. It is a trite rule of interpretation that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction [Bindra’s Interpretation of Statutes (1987), 7th Edition, page 161]. 48. Accordingly, section 42(1) of the EPA should be read as follows: (a) Where there is an occurrence of pollution, the Ministry shall take such action or measures as is necessary to control or abate such pollution. (b) Where there is a likelihood of the occurrence of pollution, the Ministry shall take such action or measures as is necessary to prevent such pollution. 49. For the foregoing reasons, I hold that the obligation entrenched in Article 38 extends to the State taking measures to prevent private citizens polluting the environment. Clean Up Pollution 50. The preamble to the EPA states inter alia that it is to provide for the protection, improvement and preservation of the environment. These are the very words used in Article 38(a) of the Constitution. Nevertheless, the constitutional undertaking of the State does not end there. The power to implement laws are vested with the executive branch of government. Thus, there is a further undertaking of the State to implement the EPA through executive and administrative action with a view of ensuring the effective realization of the right of every person to live in and enjoy a clean, healthy and ecologically balanced environment. 51. This is acknowledged in section 4(1)(a) of the EPA Act which states that the functions of the Ministry, shall be to administer, implement and enforce the provisions of the EPA. 52. Section 42(3) of the EPA makes the person responsible for causing pollution or likelihood of pollution for which any measures are taken pursuant to subsection (1) and (2), liable for the cost of taking such action or measures. 53. Section 42(4) of the EPA makes the person responsible for causing the pollution to be liable for payment of compensation for any loss or damage to the environment as a result of such pollution. Moreover, the environment must be restored to close proximation of its condition prior to disturbance at that person’s own cost. 54. The learned Principal State Counsel relying on these provisions submitted that thus there is no obligation on the State to take steps to clean up any pollution caused by private citizens. It is the duty of the person causing the pollution. 55. However, this contention is untenable in view of section 42(5) of the EPA which states that where a person fails to comply with subsection 42(4)(a), the Ministry may carry out such works as are necessary for such restoration and recover the cost from that person. The word may must also be read shall for the reasons set out earlier. 56. The positive obligation on the State in terms of Article 38 of the Constitution includes the obligation to take measures for the improvement of the environment. Improvement of the environment includes developing the environment to a better condition. Cleaning up the environment which has been polluted by private citizens also falls within this obligation. The State cannot be heard to claim that such obligation arises only where the polluter fails to comply with the polluter pays principle enshrined in section 42(3) and 42(4) of the EPA. 57. Let me give an example. Where an oil spill occurs within the maritime limits of Seychelles due to an accident, it will be absurd for the State to claim that the polluter is known and that it is the duty of the polluter to clean up the pollution. The party responsible for the oil spill may not have the resources to do so in a timely manner. This can lead to a situation where the ecosystem and beaches are affected. The impact on tourism and the consequent economic challenges needs no emphasis. 58. Where the State cleans up the pollution caused by a private citizen, no doubt the State is entitled to recover all the cost incurred. 59. I hasten to add that it does not mean that the State is under a duty to clean up all types of pollution caused by private citizens. For example, if a person pollutes the land belonging to the neighbour by dumping garbage on that land, it certainly cannot be said that there is a duty on the State to clean the environment. 60. Article 40 binds every citizen of this country to uphold the Constitution. It reads: “It shall be the duty of every citizen of Seychelles …(e) to protect, preserve and improve the environment”. Thus, the same obligation imposed on the State in terms of Article 38 is imposed on every citizen of Seychelles as well. 61. However, clearly there is a duty on the State to clean up any pollution of public places such as rivers and beaches. In Human Rights and Peace for Bangladesh vs. Bangladesh and Others (supra.) it was held that nature, natural resources, biodiversity, all open wetlands, sea, rivers, lakes, river banks, hills, forests and air are included in the public trust property. 62. For all the foregoing reasons, I hold that the answer of the Constitutional Court to the second question was framed too widely. I hold that there is an obligation on the State to take steps to clean up certain types of pollution caused by private citizens. Damages For Failure to Clean 63. As more fully explained above, the obligation to clean the pollution flows from the positive obligation on the State in terms of Article 38 of the Constitution. 64. Article 46(5)(d) of the Constitution vests power in the Constitutional Court to award damages for the purpose of compensating any person for any damages suffered due to contravention of a provision in the Charter in an application made by such person pursuant to Article 46(1) of the Constitution. 65. There may also be a situation where a constitutional breach can form the basis of a faute. That is a matter to be determined by the Supreme Court as it does not involve any question of contravention of the Constitution. 17