Judge: EMA must give access to environmental impact assessments

Gary Aboud of Fishermen and Friends of the Sea. -
Gary Aboud of Fishermen and Friends of the Sea. -

THE Environmental Management Authority (EMA) is not prohibited from supplying copies of environmental impact assessments (EIA) to the public or NGOs once the prescribed fees are paid.

In a recent ruling, a High Court judge held it would be unreasonable and irrational to impose a ten per cent limit on photocopying complete documents.

Justice Devindra Rampersad in a ruling on a statutory interpretation claim brought by the EMA also held that the environmental body could not claim third-party copyright as justification for not providing whole copies of EIAs.

The Fishermen and Friends of the Sea (FFOS), which was an interested party in the matter, argued that the EMA had a statutory duty to gather information about the environment and also share copies of EIAs, studies and reports and as environmental activists, the FFOS should not be restricted from information because of copyright issues.

The judge was asked to interpret the EMA and Copyright Acts after there was a change in an EMA policy not to allow anyone to obtain a complete copy of an EIA and only allowed copying of ten per cent of the assessment on the basis that they were subject to third-party copyright.

Rampersad said it was obvious that when Parliament sat to discuss the EMA Act in 2000, it was cognisant of the existence of the Copyright Act.

“The question the court would ask itself, therefore, is why would Parliament engage in the formulation of legislation which required full disclosure in furtherance of the public interest if it intended that full disclosure to be subject to the permission of persons outside of the control of the EMA?

“Why make statutory provision to be transparent and give extracts of the register and then pull it back by reference to another act of Parliament without making some sort of adequate provision to meet the obvious intention of the act?” he asked.

In answering his the question, Rampersad said obviously Parliament knew the act would be infringing on the rights of others, and while impinging property rights of others was not a step to be taken lightly, it was clear that the legislature “thought it necessary to take the bold step to pass the act for the greater national good.

“The court is of the respectful view that no right is absolute and any right, even though protected under the Constitution, may very well be overridden for the common good,” he held.

“To this court’s mind, therefore, it has to be that Parliament knew of the existence of the Copyright Act as part of the entire corpus of law within the republic at the time of passing the act, examined the Constitution and decided that constitutional rights as to property would be affected, passed it with the majorities mentioned and then gave the go-ahead to statutorily promote transparency by allowing copies of the register to be made.

“The burden was, and still is, on the EMA to do what was necessary to implement and comply with its statutory obligation."

He said how the EMA fulfils its mandate was for its management, but it must ensure that Parliament’s purpose is achieved.

In November 2018, a research officer of the FFOS visited the national register to obtain a copy of an entire EIA and in response, the EMA’s librarian said only ten per cent of it could be copied for each member of the public or organisation, regardless of how many visits were made. This was a change from the EMA's policy which allowed copies of entire EIAs to be done with the payment of a prescribed fee. The EMA alsotold the group that only short extracts of works to be used for the purpose of study or scholarship or private research could be copied.

FFOS challenged the change in policy. The FFOS sent a pre-action protocol letter and later filed for judicial review, which was granted. Both parties agreed, however. that the judicial review would be stayed pending the determination of the EMA's interpretation claim.

Rampersad said FFOS’s claim that copyright does not apply at the information centre and it had an unfettered right to take copies of complete EIA reports and studies had merit.

In commenting on the judge’s ruling, the FFOS said for approximately 20 years, it had obtained copies of EIAs from the EMA, until 2018, when the authority refused copying beyond ten per cent because of third-party copyright.

The group said the EMA’s “unjust change of position” had put its critical and active environmental work for the last three years in jeopardy since it was unable to access important environmental information to assist independent scientists in its work of protecting and preserving the environment for Trinidad and Tobago citizens.

“Whilst FFOS has secured victory against suppression/restriction of information, and this is to be celebrated in a free society, FFOS notes with sadness the entrenched position of the EMA making lofty claims to third party copyright that had not even been made by any such third party in this claim at public inconvenience and expense.

“The EMA is the state entity responsible for acting to protect the environment and as such should not work or adopt positions against the public in TT, where the latter is the taxpayer and thus its paymaster,” the group said.

It added that the EMA’s actions undermined the important role of the State in protecting the environment and fails the public.

"This victory counters the global movement to restrict public access to environmental information and EIAs and will influence commonwealth Caribbean jurisprudence," it added.

The EMA was represented by attorneys Anthony Vieira, Anil Maraj and Nicole de Verteuil-Milne. Anand Beharrylal, QC, Ganesh Saroop and Alvin Pariagsingh represented the FFOS.


"Judge: EMA must give access to environmental impact assessments"

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