Necessity of MEA’s Transformation in Domestic Legislation and Relevant

Caribbean Jurisprudence PresentationTeni Housty

Structure of PresentationIntroductionRelevant jurisprudenceImplementation v non-implementationNational Resources Conservation Authority v Seafood and

Ting & DYC Fishing Ltd. 58 WIR 269.Talisman (Trinidad) Petroleum Ltd. vs. The Environmental

Management Authority, EA3 of 2002, Environmental Commission.

Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).

Cal and others v Attorney General of Belize and anotherCoy and others v Attorney General of Belize and another

Regional CasesEmerging Environmental jurisprudenceEnvironmental law and Human Rigths.

The Classic approachPer de LaBastide J at paragraph 55 - Attorney-General and

Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).

The classic view is that, even if ratified by the executive, international treaties form no part of domestic law unless they have been specifically incorporated by the legislature. In order to be binding in municipal law, the terms of a treaty must be enacted by the local Parliament. Ratification of a treaty cannot ipso facto add to or amend the Constitution and laws of a State, because that is a function reserved strictly for the domestic Parliament. Treaty-making on the other hand is a power that lies in the hands of the executive ... Municipal courts, therefore, will not interpret or enforce the terms of an unincorporated treaty. If domestic legislation conflicts with the treaty, the courts will ignore the treaty and apply the local law”

A Time for a new approach“The doctrine of the unenforceability of

unincorporated treaties, as I have made abundantly clear, is in my view an old, mouldered and creaky structure, unsuitable for Caribbean climate and soil. Consequently, it would seem to me that it should be dismantled and that a new structure should be raised on the terra firma of the Caribbean Constitutions themselves, making use of course of all those parts of the old structure that are still useful and in good shape”

Per WIT J at paragraph 38 Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).

IntroductionDualism – Executive and ParliamentTreaty Making procedure in your jurisdiction.The impact on citizensJudicial approaches –

[78] In dualist States there have been several strategies employed in an effort to finesse the rule that unincorporated treaties have no effect in domestic law, and these have met with varying degrees of success. The strategies include, but are not limited to, the invoking of the doctrine of legitimate expectation. Per De La Bastide J

Relevant JurisprudenceNational Resources Conservation Authority v Seafood

and Ting & DYC Fishing Ltd. 58 WIR 269.

Talisman (Trinidad) Petroleum Ltd. vs. The Environmental Management Authority, EA3 of 2002, Environmental Commission.

Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).

Cal and others v Attorney General of Belize and anotherCoy and others v Attorney General of Belize and another SUPREME COURT OF BELIZE CONTEH CJ 21 JUNE 2006,18 OCTOBER 2007

Implementation v. Non-implementation[2011 – CCS – 1]Some suggested reasons for non-

implementationPolitical Will and prioritiesDependence on the Existing Legal

FrameworkState of Drafting ResourcesNo link to Domestic InterestCoercionImpact of Failure to implement.Limited technical, human and financial

resources

ImplementationConvention ObligationNational Environmental InterestsUse of Pre-existing resourcesMore than just legislationLegitimate Expectation

National Resources Conservation Authority v Seafood

and Ting & DYC Fishing Ltd. 58 WIR 269.CITES ConventionJamaica acceded in 1997 to the Convention on International

Trade in Endangered Species of Wild Fauna and Flora 1993, but did not then, or later, incorporate it into domestic law.

Held - that the provisions of the convention (as to restrictions on exports, etc) could not be administered so as unlawfully to interfere with the legitimate business interests of exporters and any regulation of the export of conch (in the absence of legislation) must facilitate the trade and not restrict or hinder it; and the court was prepared to support this approach by the grant of an interlocutory injunction of a mandatory nature even where such an order effectively granted the main relief in the pending litigation

National Resources Conservation Authority v Seafood

and Ting & DYC Fishing Ltd. 58 WIR 269.Judgments of Downer JA and Harrison JA.Downer JA page 273

Noted Arguments put forward for the reason for non-implementation. (Coercion)

Focus on the impact of the application for the injunction.

Harrison JA at page 300Implementing MEAs in the Caribbean: Hard

Lessons from Seafood and Ting. Dr. Winston Anderson

Talisman (Trinidad) Petroleum Ltd. vs. The Environmental Management Authority, EA3 of 2002, Environmental Commission Ramsar Convention. Denial of permission for project. Relevant ground site listed as a Ramsar

site. Challenged as a basis for refusal. Challenge upheld

Mr. Morgan did not say anything which may be construed as a derogation of the status and importance of Nariva Swamp as a Ramsar site and its continued designation as such, but submitted that although the Ramsar Convention was subscribed to by the Government of Trinidad and Tobago, it was not embodied into the laws of Trinidad and Tobago, since there was no Act of Parliament incorporating it into the local laws.

  There is that unmistakeably serious lapse and it is trite law that

while the convention will be binding upon the Government of Trinidad and Tobago as a signatory thereto, its terms cannot be enforced unless they are brought locally into effect by local enactment.

Talisman (Trinidad) Petroleum Ltd. vs. The Environmental Management Authority, EA3 of 2002, Environmental CommissionIt is to be noted that the Ramsar site is mentioned in

Schedule I of the Environmentally Sensitive Areas Rules (ESA Rules) 2001 and it is therefore to be taken into account as a Ramsar site, however, neither the Ramsar site nor the Nariva Swamp has been designated as an Environmentally Sensitive Area pursuant to the ESA Rules. Until so designated, the Respondent cannot say that there is an absolute prohibition under the ESA Rules to a 3-D seismic survey being conducted therein. Until designation of the Ramsar site as an environmentally sensitive area or one which includes terms prohibiting an activity such as that proposed, the refusal on the basis simpliciter that it is a Ramsar site, is in law untenable.

Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).Barbados Death Penalty CaseConvention not incorporated into domestic

lawTreaty derived legitimate expectation

Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).(4) That the ratification of a treaty or convention

which was not incorporated into national law did not itself make processes pursued under that treaty or convention part and parcel of the national criminal justice system, even on a temporary basis; accordingly, such processes did not become part of ‘due process’ or ‘the protection of the law’ guaranteed by the Constitution.

Thomas v Baptiste (1999) 54 WIR 387 (in part) and Lewis, Taylor, McLeod, Brown, Taylor and Shaw v Attorney-General (2000) 57 WIR 275 (in part) overruled.

Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ). (5) Nevertheless, the ratification of the American Convention on Human

Rights by Barbados (albeit not incorporated into national law), coupled with positive statements by representatives of the executive arm of Government evincing an intention or desire on the part of the executive to abide by the Convention, and the practice of the Government in giving condemned persons an opportunity to have petitions to international human rights bodies processed before proceeding to the execution of their sentences, had given the respondents a legitimate expectation that the State would not execute them without allowing a reasonable time within which the proceedings under the Convention could be completed; in the alternative (per Wit J), States were bound to give effect to treaties which they had ratified in good faith, even if the treaties were not formally incorporated into national law, and such obligation precluded the State from pre-empting the outcome of human rights petitions to international bodies by executive action.

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 applied

Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).Discussions from the Judgments of Pollard J paragraphs 63, 65, and 74The consistent and traditional road

Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox)[2006] CCJ 3 (AJ).Wit J paragraphs 32 - 34Acknowledging the Old but supporting

the new.

Cal and others v Attorney General of Belize and anotherCoy and others v Attorney General of Belize and another SUPREME COURT OF BELIZE CONTEH CJ 21 JUNE 2006,18 OCTOBER 2007 CONTEH CJ [125] In my view, given Belize’s commitment under CERD, the

defendants should take this communication seriously and respond accordingly.

[126]These considerations, engaging as they do Belize’s international obligation towards indigenous peoples, therefore weighed heavily with me in this case in interpreting the fundamental human rights provisions of the Constitution agitated by the cluster of issues raised, particularly, the rights to property, life, security of the person, the protection of the law and the right not to be discriminated against. I draw particular support and inspiration from the preamble of the Belize Constitution which requires policies of the state to ‘protect the identity, dignity and social and cultural values of Belizeans … including Belize’s indigenous peoples’.

Other Regional CasesMainly based on the EIA process and

Administrative Law. A comprehensive list can be found @ Ecosystem-based management in principles in the Caribbean – Cermes Technical Report No. 47. 1st June, 2011.

Additional CasesAlcoa Minerals of Jamaica Inc. v Herbert Broderick

(Jamaica) [2000] UKPC 11Belize Institute for Environmental Law v Chief

Environmental Officer et al BZ 2008 SC Benjamin v Attorney General et al AG 2007 HC 54Delapenha Funeral Home Ltd. v The Minister of Local

Government and Environment JM 2008 SC Fishermen and Friends of the Sea v (1) The

Environment Management Authority and (2) BP Trinidad and Tobago LLC TT 2005 PC 15, [2005] UKPC 32

Grape Bay Ltd. v Attorney General of Bermuda [2000] 1 WLR 574

Additional Cases Northern Jamaica Conservation Association et al v Natural Resources Conservation

Authority & National Environmental and Planning Agency (No. 1) (“Pear Tree Bottom No. 1”) JM 2006 SC

Northern Jamaica Conservation Association et al v Natural Resources Conservation Authority & National Environmental and Planning Agency (No. 2) (“Pear Tree Bottom No. 2”) JM 2006 SC 65

People United Respecting the Environment (“PURE”) and Rights Action Group (“RAG”) v The Environmental Management Authority and Alutrint Limited (CV 2007-02263)

People United Respecting the Environment (“PURE”) v The Environmental Management Authority (“EMA”) No. 60 of 2000

R et al v ex parte Belize Alliance of Conservation Non-Governmental Organisations (―BACONGO‖) BZ 2002 SC 14

R v Coffee Industry Board, ex parte Supreme Coffee Corporation Limited JM 1998 SC 60Save Guana Cay Reef Association Limited and Clarke, ex parte The Queen v Major et al BS 2008 CA

Soodeen v Attorney-General of Trinidad and Tobago, High Court of Trinidad and Tobago, No S-839 of 1996 (Unreported)

Spencer v Attorney General of Antigua and Barbuda and Asian Village Antigua Ltd. AG 1998 CA

Virgin Islands Environmental Council v Attorney General and Another (―Beef Case‖) Claim No. BVIHCV2007/0185 (Unreported)

Environmental Law and Human RightsArticle 149J of the Constitution of Guyana Article 154A of the Constitution of GuyanaArticle 39 of the Constitution of GuyanaNote the wide definition of the environment.Expanding the Right to Life and the Role of

International Jurisprudence.

Environmental Law and Human Rights – References Right to a Carbon Free Life: Human Rights

Approaches to Climate Change – Syitlana Kraychenko (November, 2008)

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