Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment & Anor (Belize)

Factual and Procedural Background

The opinion concerns an application to the Judicial Committee of the Privy Council arising out of plans to build a hydro-electric dam and associated works (the “Macal River Up-Stream Storage Facility” or “MRUSF”) in the interior of Belize. The proposed dam at Chalillo would (i) generate its own electricity and (ii) release stored water to an existing downstream plant so as to stabilise national supply, reduce reliance on imported power and lower domestic tariffs. The chosen site lies within largely pristine rainforest noted for rare wildlife and Mayan archaeological remains; the development therefore poses a serious environmental risk which competes with the country’s energy needs.

Under Belizean legislation equivalent to United Kingdom environmental-impact rules, an Environmental Impact Assessment (“EIA”) is mandatory for dams. A Canadian-authored EIA was submitted to the Department of the Environment (“Respondent Agency”) in 1999 and reviewed by the National Environmental Appraisal Committee (“NEAC”). On 9 November 2001 NEAC recommended approval of the EIA (by 11–1) and also recommended that a public hearing be held. On 5 April 2002 the Respondent Agency granted “environmental clearance” subject to an Environmental Compliance Plan.

The Belize Alliance of Conservation Non-Governmental Organisations (“Appellant”) commenced judicial-review proceedings alleging (i) that the EIA was so deficient it could not lawfully be approved and (ii) that the failure to order a Regulation 24 public hearing was unlawful. The trial judge, Judge Alpha, rejected the first ground but ordered that a public hearing take place; he declined to quash either the NEAC recommendation or the clearance decision. Both sides cross-appealed. The Court of Appeal (Judges Beta, Gamma and Delta) dismissed the Appellant’s appeal on 31 March 2003; a public hearing had meanwhile been held. Leave to appeal to the Privy Council was granted.

After dismissal of the appeal, the developer (“Company A”) executed a construction contract worth approximately US $30 million and began substantial on-site works, including tree-felling and construction of access roads and dam abutments. In June 2003 the legislature enacted the Macal River Hydroelectric Development Act 2003, purporting to deem compliance with the Environmental Compliance Plan to be compliance with all environmental laws and to authorise the project notwithstanding any court order.

The Appellant petitioned the Privy Council for interim relief halting construction until the substantive appeal (set for December 2003) could be heard.

Legal Issues Presented

1. Whether the Privy Council possesses jurisdiction, original or appellate, to grant an interlocutory injunction restraining further work on the MRUSF project.
2. What principles govern the grant or refusal of interim injunctive relief in public-law cases, including the need (or not) for a cross-undertaking in damages.
3. Whether the Appellant’s challenge to the adequacy of the EIA and the decision-making process is arguable and, if so, how strong that case appears on the material presently before the court.
4. Where the balance of convenience (or relative risk of injustice) lies between granting and refusing an injunction in circumstances where major construction works and significant financial commitments are already under way.

Arguments of the Parties

Appellant’s Arguments

• The Board has an inherent jurisdiction to protect the subject-matter of an appeal and should therefore restrain construction to prevent the appeal becoming academic.
• The EIA is fatally incomplete in relation to geology, hydrology, ecology and archaeology; Regulation 4 of the Environmental Impact Assessment Regulations requires all significant issues to be examined before a project starts.
• The public hearing mandated by Regulation 24 should have occurred before any approval; holding one afterwards does not cure the defect.
• Any financial loss alleged by the Respondents is overstated or indemnified by government agreements; no undertaking in damages should therefore be required.

Respondents’ Arguments

• The Court of Appeal had no jurisdiction to grant interim relief and, in any event, the Privy Council should not exercise such power now.
• The Cyanamid principles, modified for public-law cases, require either a strong prima-facie case or an undertaking in damages; neither is present.
• Two courts have already upheld the EIA; the Appellant’s case is weak, even “risible.”
• Halting works for four months would cause substantial, uncompensated financial loss and jeopardise a project of national economic importance.
• The 2003 Act (though not relied on to oust jurisdiction) underscores Parliament’s will that the project proceed.

Table of Precedents Cited

Court's Reasoning and Analysis

Jurisdiction. Although the Belize Court of Appeal had declined jurisdiction, the Privy Council held it possesses an inherent power to grant interim relief to ensure that an eventual judgment is not rendered nugatory.

Applicable Principles. The Board adopted the American Cyanamid test, modified for public-law cases per Factortame. It emphasised a flexible discretion, particularly regarding undertakings in damages when public and private interests intersect.

Strength of the Appellant’s Case. The Board accepted that the appeal is not frivolous and raises issues of genuine public importance, but considered it “not a strong case” for interlocutory purposes, especially since both lower courts had rejected the substantive challenge and a public hearing had subsequently been held.

Balance of Convenience / Risk of Injustice. Substantial construction works were already underway; halting them would cause significant financial loss and disrupt national energy policy. Conversely, additional work between the application date and the December hearing would marginally increase, but not fundamentally alter, environmental consequences should the appeal succeed. Because the Appellant offered no undertaking in damages, the Board regarded the risk of injustice to the Respondents as greater if an injunction were granted than if it were refused.

Holding and Implications

HOLDING: The interim injunction was DENIED.

Construction on the MRUSF project may continue pending the expedited substantive appeal fixed for December 2003. The Board’s decision preserves its jurisdictional ability to grant protective relief but underscores that such relief will rarely be given, absent a compelling case or an undertaking in damages, where significant public and commercial interests are already engaged. No new precedent of substantive environmental law was set; the ruling primarily guides interim-relief discretion in public-law appeals.