Environmental Legislations And Protection Measures In Mauritius Law Essay

Mauritius has respectively been colonised by the Dutch, French and the British. The period, during which the French occupied the island, a number of legislations were promulgated; the civil code, the penal code. So the first notion of environmental protection therefore dates from the time when Mauritius was still a French colony. The British then captured the island in 1810 and successively colonised the island. According to Article 8 of the capitulation Act, the local inhabitants were allowed to enjoy their own religious beliefs and preserve their laws, customs and traditions. During the British colonial rule, there were a number of legislations passed in the field of environment namely; The Rivers and Canals Act 1863, The Noise Prevention Act 1938 and so on.

On the 12th March 1968 [2] Mauritius acquired its independence. Mauritius inherited from the French and British colonization by acquiring characteristics of both these legal systems. Therefore Mauritian legal system is a mixed legal system. It is the parliament who has law making powers [3] . From 1968 to 1990, the Mauritian legislator enacted a number of legislations regarding the protection of the environment. Such Acts are The Pesticides Control Act 1970, The Forests and Reserves Act 1983, The Central Water Authority Act and many others.

In 1991, the promulgation of the EPA, however, was a turning point in environmental protection. This act was repealed by the EPA 2002 [4] . It was for the first time that the legislator took a very global approach in the matter of protection of the environment. Previously the protection of the environment was split into groups, that is the legislator was taking specific measures to address to specific problems of the different components of the environment; Air, Water, Land, etc. This approach was not appropriate to deal with all the effects of environmental degradation. So the legislator embarked on a reformed program and enacted The EPA 1991. This Act created institutions which are responsible for the betterment of the environment and these institutions are preserved in The EPA 2002. Lately, the EPA 2002 has been amended to be more adaptable to the economic challenges and to address a number of issues. The EPA, Act N0.6 of 2008, was adopted in the National Assembly on the 1st April 2008 and proclaimed on 15th July 2008.

3.2 Laws originating from the French colonisation

Mauritius inherited different laws from the French, namely the civil code and criminal code. There are certain provisions which may be linked to environmental protection though it is not specifically provided for.

It must be noted that the civil code does not really deal with environmental protection issues; instead it is only enforced with regard to a particular individual. As we go through the civil code, we will observe that the damage must have already been caused and then, the person may ask for remedy. The contrary does hold any relevance in the enforcement of the particular article.

Article 1382 of the code civil provides that where any act of an individual has caused harm to another individual, the former should repair the damages caused to the latter. If we analyse this article with respect to the protection of the environment, we come across the notion of “troubles de voisinage”. In the case off Hermic Limited v/s Compagnie des Magasins Populaires ltee, the plaintiff complained against construction activities being carried out close to his restaurant by the defendant company. The plaintiff alleged that the noise and air pollution among other things resulted in a loss of his revenue. It can be observed that the act of the defendant caused harm to the plaintiff and this necessitates remedy on the part of the defendant. Such remedy will normally be addressed to the reduction of the noise and air pollution. In some way, the civil code indirectly addresses environmental problems.

Along with the civil code, the Criminal Code Act 1838 does contain certain provisions dealing with environmental protection to a certain extent only. Article 378 [5] deals with waste disposal. If someone contravenes this article, the he shall be liable to a fine not exceeding 1,000 rupees. The relative provisions in the article deals with the environment, though not specifically designed to.

3.3 Institutions under the EPA 2002

The EPA 1991 created some institutions that were responsible for the protection of the environment. When the EPA 1991 was repealed by the EPA 2002, the institutions created by the previous Act were preserved and new institutions were created under the EPA 2002. These institutions have as aim to ensure the protection of the environment. Actually the EPA 2002 binds the state [6] , this means that all the requirements of this Act shall be applicable to everyone without exception, even the Prime Minister when making new projects concerning sustainable development; he must get an Environmental Impact Assessment (EIA) license.

3.3.1 The National Environment Commission (NEC)

This Commission is created under section 5 of the EPA 2002. The NEC shall comprise of the Prime Minister as the chairman and other ministers as specified in the first schedule of the Act [7] . The NEC ensures the protection of the environment by setting national objectives and goals and determines policies and priorities [8] that are to be met for a clean environment. Such objectives must be followed and policies should be adhered to, the NEC normally monitors and supervises the activities of the public departments [9] involved in the protection of the environment. If the policies are not being adhered then the NEC can issue directions to the relevant department [10] .The Ministry of Environment is not the only enforcing agent in the field of environmental protection; the NEC will see to it that there is coordination and cooperation between the public departments, local authorities and other governmental organisations. This means that all the local authorities and public departments will have to work together.

The NEC can give direction to any of the Ministers to establish standards regarding air, land and water [11] ; example Standards For Effluent Discharge (Amendment) Regulations 2004. According to section 7(f), subject to any direction of the NEC the relevant Minister shall prepare environmental action plans. The decisions of the NEC are binding on all the ministries.

3.3.2 Police de l’Environement (The Environmental Police)

The Police de L’Environement is an enforcing agent which was created for the enforcement of the environmental laws in Mauritius [12] . The Police de l’Environement is a unit of the Mauritius Police Force and which provides assistance to the Director on enforcement of environmental laws. . The institution registers complaints of the public and responds accordingly.

In 2009, the Police de L’Environement issued 3,479 notices to drivers of vehicles emitting black smoke as compared to 6,782 in 2008 [13] . The police officers seem to be doing regular check up and according to Inspector Ramnauth an average of 300 contraventions are handed out every month [14] . According to Inspector Ramnauth, if the emission of smoke goes over 50%, the owner/driver will be liable to a fine of Rs1, 000. If the emission is more than 70 %, a prohibition notice is served and the vehicle cannot go on the roads. Such initiative of the institution minimises air pollution from motor vehicles as the motor vehicles will have to go through regular check up else sanctions will be applicable.

3.3.3 National Network for Sustainable Development (NNSD)

The NNSD is created under the EPA 2002 [15] , comprising several stakeholders, including NGOs and civil society, and chaired by the Minister of Environment. The objects of the NNSD is set out in the section 11 of the EPA 2002 and it shall act as a forum for discussions and consultations concerning quality of the environment, measures and plans to improve the state of the environment, protection of environmental assets and national heritage for a sustainable development, development and implementation of an integrated approach to pollution prevention. The NNSD helps to maintain, manage and protect the environment in order to foster a sustainable development in Mauritius.

3.3.4 Integrated Coastal Zone Management Committee (ICZM)

The ICZM comprises of the Director of Environment, representatives of Ministries, Departments, organisations such as the University of Mauritius, and six NGOs and is responsible for the coordination of marine related studies and projects carried out by the Ministry. The specific objectives of the ICZM are to consider the problems of our coastal areas and formulate appropriate policies to tackle those problems. The ICZM will coordinate and make recommendations concerning coastal constructions; that is the committee will develop a plan concerning how construction should be made in relation to coastal areas [16] . The coastal zone will be properly managed and protected so as to conserve the marine environment. The regulations also provide for the prevention, reduction and control of pollution from vessels and other engines [17] . A project such as the National Oil Spill Contingency Plan was implemented; two contingency plans, National Oil Spill Contingency Plan and the Port-Louis Harbour Oil Spill Response Plan, were devised to face oil spill threats.

3.3.5 The Department of Environment

The EPA 2002 maintains the existence of the Department of Environment previously created under the EPA 1991. According to section 8(2)(d) the director of the Department of Environment should carry out the duties and functions provided under this Act, and any such assignments given to him by the Minister. One of the duties of the director of the environment comprises of setting up of a Preliminary Environmental Report committee in order to seek the approval of the Minister for certain activities [18] .

3.4 Powers of the Director of Environment and other Enforcing Agencies

The EPA 2002 gives certain powers to the Director of Environment and Enforcing Agencies which can be qualified as joint powers while there are certain exclusive powers that are given to the Director of Environment. The joint powers are the programme approval, programme notice, enforcement notice, and powers of entry, entry and arrest without warrant, entry of a dwelling house. The exclusive powers are the prohibition notice and stop order.

3.4.1 The Programme Notice and The Programme approval

For the Director of Environment and the enforcing agencies to be able to apply the powers conferred upon them by virtue of the EPA 2002, damage should have been caused. The Director of Environment and the enforcing agencies should be informed of such damage.

According to section 70 of the EPA 2002, if the Director of Environment is of opinion that a person is breaching or is likely to breach an environmental law, then he may serve a Programme Notice to that person. The Programme Notice attempts to amicably settle the problem. The Director may request the person to give measures to remedy the current contravention or the future contravention. When the measures are approved, a programme approval shall be issued to remedy or eliminate the contravention [19] .

If the person fails to comply with the programme approval, any direction mentioned under section 70(4) or a request in a notice under section 70(1), then the Director of Environment may issue or is caused to issue an enforcement notice or a prohibition notice [20] .

3.4.2 The Enforcement Notice

The enforcement notice can be described as a procedure which lies between the programme approval and the prohibition notice. The Director of Environment may issue an enforcement notice if he is of the view that the person is likely to contravene an environmental law and if adequate remedies are not provided in the programme approval or when a prohibition notice is not appropriate. The enforcement notice will contain measures that shall be taken to remedy the contravention [21] and there is delay that should be respected. Any person failing to comply with an enforcement notice shall commit an offence [22] . The offence committed under section 71(4) will be liable to a fine ranging from 50,000 rupees to 100,000 rupees and to an imprisonment term not exceeding 4 years [23] . If such an act is committed on a second time, the person shall be liable to a fine ranging from 100,000 rupees to 500,000 rupees and to an imprisonment for a term of not less than 6 years to a maximum of 12 years [24] .

3.4.3 Power of Entry, Entry and Arrest without Warrant, Entry of a Dwelling House

According to section 8(5) of the EPA 2002, the Director of Environment may designate any officer of the department, as authorised officer who shall have the duties and powers conferred by this Act. Some of these duties and powers are found under the section 79, 80 and 81 of EPA 2002. These powers are conferred to the enforcing agencies and the enforcing agency confers the powers under section 79, 80 and 81 on an authorised officer [25] . Thus the Director of Environment, the authorised officers and the enforcing agencies have the powers conferred to them by virtue of section 79, 80 and 81 of the relevant Act.

Section 79 of the EPA 2002 relates to the Power on Entry. The authorised officer may at any time enter any premises to verify whether any environmental law or any programme approval, any enforcement notice, prohibition notice is being complied with [26] . The authorised officer may not enter a dwelling house without giving prior notice to the owner of the house [27] and the consent of the owner is also important.

Section 80 of the EPA 2002, relates to Entry and Arrest without Warrant. With regard to any contravention of environmental law, an environmental emergency [28] an authorised officer may enter premises at any time and may without warrant enter and search the premises, other than a dwelling house. The officer may search and secure any equipment which is presumed to be used for the contravention of environmental laws. The authorised officer may arrest any person who is suspected of the contravention and due to some reasons the name and address of that person cannot be immediately ascertained. Such actions of the authorised officer, Director of Environment and enforcing agencies will be of great help in reducing contraventions of the environmental laws and ensure a better protection of the environment.

For an authorised officer to enter a dwelling house, he must obtain a warrant [29] from the magistrate who shall allow him to exercise the powers conferred upon him under sections 79 and 80.

3.4.4 The Prohibition Notice

The Prohibition Notice aims at banning an activity or the way the activity is carried on causes or is likely to cause pollution. The notice may be served to the owner of the premises or the person controlling the activity which is likely to cause pollution [30] . It is to be noted that according to section 72(2) of EPA 2002, the Director of Environment may serve a prohibition notice even if the activity does not contravene any environmental law.

A Prohibition notice can also be served even if there is a permit from the respective authority allowing the activity to be carried out. Nevertheless if there is an order from a Judge preventing the issue of a Prohibition Notice, the Director of Environment cannot do otherwise [31] . The Prohibition Notice shall contain the serious pollution caused or the risk of pollution which is involved and the measures that are to be followed to eliminate the serious pollution caused and the period within which they should be implemented. Falling to comply with the Prohibition Notice, the person whom the notice was served will commit an offence under section 72(5) of the EPA 2002. The offence committed under section 72(5) will be liable to a fine ranging from 50,000 rupees to 100,000 rupees and to an imprisonment term not exceeding 4 years [32] . If such an act is committed on a second time, the person shall be liable to a fine ranging from 100,000 rupees to 500,000 rupees and to an imprisonment for a term of not less than 6 years to a maximum of 12 years [33] .

3.4.5 The Stop Order

The Stop order relates to a specific situation. If a person carries out an activity without a PER or EIA license, he shall commit an offence. The Director of Environment will send a Stop Order to that person, therefore prohibiting the development or the activity. Any person to whom a Stop Order is served and does not comply with shall commit an offence. The offence committed under the section 73(2) shall be liable to a fine specified under section 85(2) of the EPA 2002.

3.5 Environmental Impact Assessment and Preliminary Environmental Report

Environmental Impact Assessment (EIA) is one of the regulative measures brought forward by the Environment Protection Act 2002. Following the amendment of the Environmental Protection Act 1991 in June 1993, Mauritius first adopted the formal procedures of EIA. Part IV of the EPA sets formal procedures for EIA. The EPA 1991 was repealed and replaced by the EPA no.19 of 2002. This further reinforced and consolidated the legal framework for environmental management. There is a new licensing regime provided under the EPA 2002, which requires either Preliminary Environmental Approval or an EIA license for minor activities to strategic development.

3.5.1 Preliminary Environmental Report (PER)

PER is a short form of an EIA and this analysis is undertaken to spot the impacts associated with the proposed development. PER is an effective tool which will ascertain whether the proponent can go ahead with the proposed development. Part A of the Fifth schedule of the EPA 2002 list all the undertakings that would require a PER. Normally undertakings requiring a PER, by their very nature are not highly polluting and frequent applications are entertained by the Ministry.

The PER must be deposited at the office of the Director of Environment. There are certain particulars that are required in the PER which are set out in section 16(2) and (3) of EPA 2002. According to section 16(2) of EPA 2002, the PER must contain details about the effects of the undertaking on the society, environment and people, the measures that the proponent proposes to take to avoid and reduce the effect of the undertaking on the environment. So we can see that there is a great concern for the environment; the negative impacts on the environment are being reviewed before giving the approval for an undertaking. The impacts and mitigating measures should be included in terms of solid waste, wastewater, noise, odour, air emissions, traffic, etc. The PER should also indicate all unavoidable impacts.

However if the proponent give false or misleading information in the PER, the approval of the PER will be revoked [34] and the proponent shall be committing an offence. The Director of Environment shall review the PER and call up for a PER committee. The committee shall examine the PER and make recommendations to the Minister; the approval of the PER rests on the Minister [35] . It must be noted that no undertakings listed in part A of the first schedule of the EPA 2002 can be executed without the approval of the Minister.

Section 15(2)(a) of the EPA 2002 requires that:

“No proponent shall commence, proceed with, carry out, execute, or conduct or cause to be commenced, proceeded with, carried out, executed or conducted a proposed new undertaking specified in Part A of the Fifth Schedule, without an approval of a preliminary environmental report in accordance with section 16 .”

According to section 15(8), if someone contravenes section 15(2)(a) of the relevant Act, he shall commit an offence. Therefore any undertaking carried out without the proper approval of the Minister will be illegal and sanctions are to be taken. Any proponent on first contravention of section 15(2)(a) will be liable to a fine ranging from 50,000 rupees to 100,000 rupees and to an imprisonment term not exceeding 4 years [36] . In this case, the Director of Environment may serve a stop order prohibiting the development or activity which started without the relevant license. This shows a strict emphasis which is laid on the development process because this will have an impact on the environment we live in.

3.5.2 Environmental Impact Assessment (EIA)

EIA is a study which determines the environmental consequences of a proposed development. The expected results on the natural environment, human health will be evaluated in the study. The EIA is a sound decision making tool and helps in achieving sustainable development in the country. Various alternatives are analysed through which the proposed development can be realised and identifies the best combination.

Part B of the Fifth schedule of the EPA 2002 lists all the undertakings that require an EIA license. Any new propose undertaking under the category specified in the Fifth Schedule requires an EIA license.

Section 15(2)(b) of the EPA 2002 requires that:

“No proponent shall commence, proceed with, carry out, execute, or conduct or cause to be commenced, proceeded with, carried out, executed or conducted a proposed new undertaking specified in Part b of the Fifth Schedule, without an EIA license.”

Proceeding with an undertaking without an EIA license is an offence [37] . The sanctions provided in section 85(2)(a)(b) will be applied by the court depending on whether it is the proponent’s first contravention or second.

The EIA report should be submitted to the Director of the Environment. The EIA report should contain certain details which are listed in section 18(2) of the EPA 2002. The report [38] shall contain the exact location of the proposed development, the purpose of the undertaking. The direct and indirect effects of the proposed undertaking along with any actions or measures proposed to reduce, avoid the likely effects of the undertaking on the environment. Also, alternative manner in which the proposed project can be carried out in order to cause less harm to the environment. This will help to determine the most environmental friendly process and enhance environmental protection.

The EPA 2002 provides for public participation [39] in the EIA mechanism. This helps in having public opinion in the establishment of new undertakings. Not to forget that the EPA 2002 is set for a better quality of life and this will be achieved through environmental protection. The undertaking is to affect the life of the general public in some way, so the public’s opinion has an important place in deciding whether a proposed undertaking must be allowed.

The EIA license shall be granted by the Minister [40] if the EIA report match the requirements in section 24 of EPA 2002. The Minister has the power to revoke an EIA license [41] if the licensee is disobeying the conditions of his license; the proponent did not disclose any material information or provided false or misleading information; any circumstances in which the Minister has reason to believe that the revocation is justified. Such provision help to maintain a sustainable development and undertakings can be monitored therefore reducing negative environmental impacts. This safeguards land resources from environmentally unfriendly activities.

3.6 Laws Applicable to the Protection of Land Resources

The EIA is a measure to regulate land development with minimal harm caused to the environment; this helps in the protection of land resources from evident sources of pollution resulting from an undertaking. There is also the Town and Country Planning Act 1995 which deals with the proper management of land resources in Mauritius.

The Town and Country Planning Act 1995 deals with planning schemes designed for development of land. Accordingly, for development purposes a permit must be obtained [42] . Upon the acceptance of the local authority, the proponent will be granted a license. So development activities are being monitored. If the local authority finds that the development being carried out contravenes the development permit, the local authority will serve a notice to the land owner or to the holder of the development permit which will contain steps to be followed to remedy the breach [43] . If the land owner or permit holder does not meet the terms of the enforcement notice then he shall be committing an offence and he shall be liable to a fine of 1,000 rupees for each day on which the offence continues [44] .

Land, buildings, gardens should not be neglected, meaning that proper treatment should be given to them in order not to negatively affect the environment which can cause problem such as proliferation of mosquitoes, unsound environment. Land should not be used for dumping; this gives rise to environmental problems. In such circumstances the local authority will serve the owner of the land a waste notice which will contain steps to follow to fade out the current problem within a period of time not less than 21 days [45] .

As such land resources are being monitored by the relevant Acts which govern land development and there are enforcement procedures when breaches do arise. Land is a scarce resource and the maximum must be obtained from it and through such provisions land resources are being protected.

3.7 Laws Relating to the Protection of Water Resources and Coastal Zones

The management and protection of water resources has become the foremost concern of the Government. There are different legislations dealing with the protection of water resources in Mauritius.

The EPA 2002 prohibits dumping in the coastal zone; that is any pollutant, waste or other noxious form must not be dumped into the coastal zone. Any person who contravenes this section of the Act shall commit an offence, shall be liable to a fine ranging from 50,000 rupees to 100,000 rupees and to an imprisonment term not exceeding 4 years [46] . If such an act is committed on a second time, the person shall be liable to a fine ranging from 100,000 rupees to 500,000 rupees and to an imprisonment for a term of not less than 6 years to a maximum of 12 years.

The Rivers and Canals Act (1863) and amendment of 1968 establishes the rules for the use of rivers, streams, and canals. This Act deals with pollution, waste and environmental effect in Mauritius. Section 26 of this Act regulates the constructions near rivers and streams and section 87 and 88 prevents throwing of dirty waters into rivers.