Privy council rules in favor of FFOS (Water Pollution Fees)
Date: November 27th, 2017
Please see attached for the Judgement handed down by the Privy Council
Privy Council Rules for FFOS
The Judicial Committee of the Privy Council has today 27th November 2017, overturned the Trinidad and Tobago Appeal Court judgement handed down by Justices of Appeal Honorable Gregory Smith, Honorable Nolan Bereaux, and Honorable Mark Mohammed and has ruled in favor of Fishermen and Friends of the Sea (FFOS) ending an eleven year journey to challenge the Government of Trinidad and Tobago’s legislated Water Pollution Fees (Amendment) Regulations of 2006.
FFOS consider the implications of this matter to be of a significant global interest to the critical emergent principle of environmental law and management.
In 2008, FFOS mounted this public interest challenge of the Government’s interpretation of the Polluter Pays Principle of the Water Pollution Fees (Amendment) Regulations of 2001. These Regulations required that all polluters, regardless of their pollution profile, pollution load, sensitivity of the receiving environment, or toxicity level, would be charged the same “flat fee” system for Water Pollution Permits. FFOS argued that this was inconsistent with the Polluter Pays Principle and it was by extension, unlawful to charge a small animal farmer the same fee as a chemical or petrochemical company.
This decision illuminates the fact that the Polluter Pays Principle has been a longstanding feature of the National Environmental Policy (NEP) of 2006, and has been consistently adopted and maintained by differing Governments of this country since 1998.
This Judgement is an important Ruling for a number of reasons.
— This Judgement vindicates the objections of FFOS and has found the decision of the Trinidad and Tobago Government to be unlawful.
— The Judicial Committee also agreed with the objections of FFOS to the lack of independent consideration by the then Minister of Planning, Housing and the Environment in arriving at the standard TTD10,000 permit fee.
— This decision is now the authoritative ruling on the interpretation and application of the Polluter Pays Principle
— This decision requires the Government of Trinidad and Tobago to comply with the Privy Council’s interpretation and directions.
— The Privy Council has given directions for the review and reconsideration of the polluter permit fees in accordance with the guidance provided in the ruling.
— The Privy Council has emphasized the need for the permit fees to be structured in such a way to be able to adequately fund the Environmental Management Authority (EMA) to correct environmental damage.
At a time when there is wide public outcry against unlawful, careless and frequent environmental disasters such as oil spills and unknown/unmeasured toxic discharges, this ruling is a victory for all caring citizens and voiceless communities and will serve to build the capacity of the EMA to act in accordance with this Ruling and to correct environmental damage from pollution.
This decision will have an immediate and wider impact in relation to other Government activities including the recently passed Air Pollution Rules (2014) which suffer from a similar illegality and which FFOS hereby formally call on our Honorable Minister of Planning and Development and the Attorney General to immediately and voluntarily review in accordance with this ruling of the Privy Council.
This judgment underscores the long hard road to justice which FFOS maintained with several judicial challenges over these past two decades. FFOS is encouraged by this victory and will maintain its course towards the sustainable development of Trinidad and Tobago.
FFOS was represented by Counsel, Fyard Hosein SC, Rishi P A. Dass and Marina Narinesingh who successfully appeared on its behalf and who are thanked for their hard work and dedication over this decade.