The ongoing case was originally brought by a company that owns land at Fairview estate and by a director of the company. They are suing the minister of environment, energy and climate change as well as the minister of health, along with the attorney general.
They claim that a river next to their property is badly polluted and the source is strongly suspected to be a large-scale, privately owned, livestock farm. They say this should not be happening in a residential area. They gave the respondents a tip-off about the illegal dumping of animal waste into the river that took place at night, but nothing was done about it.
Their litigation is based on a contention that the government has failed to carry out any investigation to establish the source of the contamination, and has also failed to clean up the pollution.
Damages sought against the state
They are claiming financial compensation of SCR 3m and want the courts to order that the government should ‘identify and eliminate’ the source of the E. coli contamination immediately.
Certain questions were referred by the presiding judge for consideration by the constitutional court but the outcome of that referral was in turn challenged by the government at the apex court, the court of appeal.
Now the court of appeal has set aside the constitutional court’s decision. It found that the declaratory orders issued by the constitutional court in March 2023, were wrongly decided for what appears to amount to essentially technical reasons.
However, the court of appeal looked at the issues involved afresh and produced a judgment with far-reaching potential to influence the way pollution is dealt with in Seychelles. The court’s findings could also be influential beyond Seychelles, as states wrestle with the question of environmental cleanups in response to pollution.
Third generation right – not justiciable?
The judge who wrote the decision, with the unanimous agreement of the court, was Janak de Silva, a non-resident judge from Sri Lanka.
The key issue for the court to address was the government’s argument that the ‘third generation right’ of the original claimants in the matter, to ‘live in and enjoy a clean, healthy and ecologically balanced environment’ was in fact ‘not justiciable’.
While the right to live in and enjoy a clean and healthy environment was often described as a third generation right, it was ‘one of the most fundamental rights of a human being,’ De Silva wrote.
Healthy environment essential for every other right
‘None of the myriad of other fundamental rights, including civil and political rights, can be meaningfully exercised by a human being in the absence of a clean and healthy environment which can sustain life.
‘A clean and healthy environment is a sine qua non for the meaningful expression of any other fundamental right or human right.’
De Silva then quoted from significant religious leaders, ancient and modern, on protecting the environment. He also quoted from the 1972 Stockholm Declaration and the 1992 Rio Declaration, from a major 1997 opinion of the International Court of Justice and from many decisions by domestic courts of other jurisdictions, all upholding the obligation of the state ‘to preserve the environment for present and future generations.’
State’s constitutional promises to protect environment
But what did the constitution of Seychelles say? First, said De Silva, it recognised the right of every person to live in and enjoy a clean and healthy environment. ‘Secondly, the state gives three specific undertakings towards ensuring the effective realisation of this right.’
‘The word “undertakes” in Article 38 is not a mere aspiration as was contended by the state,’ the court held. ‘It is a constitutional promise given by the state to every person with a view to ensuring the effective realisation of this right.’
One of these ‘undertakings’ was that the state would ‘take measures to promote the protection, preservation and improvement of the environment.’
The word ‘measures’ referred to executive, legislative and judicial acts that are part of the power of the state. Thus, the state had a ‘positive duty’ to take steps to promote the protection of the environment, the court found.
‘May’ or ‘must’?
But a crucial issue, raised by the government, was the wording of the Environment Protection Act (EPA). It said that when there was ‘an occurrence of pollution’ the ministry ‘may’ take action. This, said counsel for the government, meant there was no positive duty to act.
But the court wasn’t persuaded: if a law could be construed in one way that would make it consistent with the constitution, and in another way that would be unconstitutional, then the court should lean in favour of a construction that would be unconstitutional, the judges found.
In this case, the law should be read to say that where there was pollution, the ministry ‘shall’ take the measures necessary to deal with it, as this would make the law congruent with the constitution. This in turn meant that the Article 38 obligation ‘extends to the state taking measures to prevent private citizens polluting the environment’.
Act to clean up, then recover costs
And while the EPA makes the person responsible for causing pollution liable for the cost of a cleanup, this didn’t mean there was no obligation on the state to take steps to clean up any pollution caused by a private citizen.
Again, the EPA says the relevant ministry ‘may’ carry out the work needed for restoration and recover the costs from the person responsible for the pollution. And again, said the court, ‘the word “may” must also be read “shall” for the reasons set out earlier.’
‘Let me given an example,’ writes De Silva. ‘Where an oil spill occurs within the maritime limits of Seychelles due to an accident, it will be absurd for the state to claim that the polluter is known and that it is the duty of the polluter to clean up the pollution.’ Those responsible for the spill might not have the resources to do this properly and ‘the ecosystem would be affected.’
Where, in a case like this, the state cleans up the pollution caused by a private citizen, the state would be entitled to recover all the costs incurred.
‘Clear duty’ on the state to clean up rivers, beaches
Thus, there was ‘an obligation on the state’ to take steps to clean up ‘certain types of pollution’ caused by private citizens.
This didn’t extend to a situation where someone dumped garbage on a neighbour’s land; like the state, every citizen was obliged to protect the environment. But the state had a clear duty to clean up any pollution of public places like rivers and beaches.
What about damages for failure to clean pollution? The constitutional court had the power to award damages to compensate anyone for damages suffered via contravention of the constitution. But the supreme court would have to decide whether this case was one in which the question arose – it didn’t involve any question of constitutional infringement.
The appeal court then formally found that Article 38 meant the state had to act to ensure ‘that private citizens do not pollute the environment’, that the state was obliged to take steps to clean up pollution caused to public places like rivers and beaches, and that the state may, ‘in certain instances, be liable to citizens in damages’.
The case was then sent back to the supreme court to finalise the claim, given the answers of the appeal court, and the evidence that may be led by the parties.