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Jan 29, 2004

Privy Council green lights Chalillo

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The controversy has been going on for so long that it’s hard to believe it’s finally over. This morning in London the Privy Council, Belize’s final court of appeal, handed down its decision in the case of the Chalillo Hydroelectric Project. By a razor thin vote of three judges to two, the court dismissed the appeal by BACONGO and held that government had not acted improperly when it granted environmental approval for the dam’s construction. The court’s opinion, including the minority’s dissent, runs for thirty-seven pages and the lucidly written document makes for interesting reading. In essence, Lord Hoffman, writing for the majority, concluded that the decision to proceed with the project was a political one and that, right or wrong, it was not for the judiciary to interfere, so long as legal procedure was followed. With regard to that procedure, the majority held that while the Environmental Impact Assessment did contain errors–particularly on the geology of the site–those errors were not significant enough to prevent approval by the Department of Environment.

While that view carried the day, it was not a slam-dunk for Belmopan. In a strongly worded minority dissent, Lord Walker wrote that the geological errors and subsequent failure to quickly disclose them were very significant and that the project should have been halted until a new E.I.A. was prepared and public consultations held prior to any approval by D.O.E.

But as we are often reminded: “better ugly win than pretty lose,” and while the winners were not gloating, they were obviously relieved. For Foreign Minister Godfrey Smith, who presented government’s case when he was Attorney General, the case hinged on legal, not political, questions.

Godfrey Smith, Former Attorney General

“As the judgement itself points out, a lot of people were–and I think still are–under the view that this thing could turn on whether the dam should be built or not. It is not about that. Once the law is complied with, and the A, B, C, D steps are followed, you have to proceed. So even, for argument’s sake we were asked to begin again, once we began again and followed what the judgement said, we would be able to proceed to build the dam. So that has to be recognized at all times. I do want to make this point that I feel it is a huge vindication for the local courts in the Belize, for the Belize Court of Appeal, for the Supreme Court, and local lawyers because when you read the judgement you will see that there was nothing new that they said that hadn’t been said by local judges, but local lawyers, in particular the judgement of the Chief Justice and the President of the Court of Appeal, the late Ira Rowe, who in my view gave a comprehensive, simple and elegant judgement, which in my view was not bettered by the Privy Council.”

Prime Minister Said Musa

“Personally I’ve never felt or questioned their bona-fideness in terms of trying to convince courts, trying to convince people to see things their way. But I would point out to them that our government has a very proud record in respecting, conserving, and protecting the environment and that will continue to be our policy. But like I said, every act of development, every economic activity has an environmental impact of some kind or another and having weighed it all up, I think we should now move on to realise that this project should go ahead, obstruction should not be put in its way. On the political side, the people of Belize this matter was put before them not only in consultation, but in the elections, two successive elections and they voted overwhelming for the party that supported the building of this project. So let’s respect the democratic process, let’s move ahead.”

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