London High Court Issues Warning on Rainforest Dam: Construction to continue for now
London (U.K.) – A judicial committee of the Privy Council today stopped short of blocking construction on a Canadian-backed dam in the rainforests of Belize pending a hearing in December challenging the environmental approval of the project. In its decision, the Court—the highest court for Belize and many other Commonwealth countries— underscored the unusually cozy relationship between the main proponent of the project, Fortis, Inc. of Canada and Belize’s government. However, the court decided not to stop construction before December, when a panel of five Privy Councillors will hear arguments on whether the dam’s approval was obtained legally, essentially allowing Fortis, Inc. to proceed at its own risk.
“This really leaves us—and Fortis—in suspense,” said Lois Young, attorney for the Belizean groups. “The Court is clearly suspicious of the deal behind this dam, and of the government’s attempts to put Fortis above the law. We think these questions will have a strong impact when the full case is heard in December.” At the full hearing, the court will be asked to overturn the approval and order fundamental studies of the dam's safety and impacts on wildlife and ancient archaeological sites.
In its decision, the Privy Council issued a warning about an Act recently passed by Belize’s parliament which attempts to shield Fortis from the law. Belize’s government “should be in no doubt as to the seriousness of the [constitutional] issues potentially raised by the 2003 Act”. Human rights and environmental groups have decried the new law and will seek to have the court strike it down as unconstitutional at the December hearing.
Today’s ruling sets the stage for a high-stakes argument in December over the controversial proposed 50 meter-high “Chalillo” hydro-electric dam that scientists say would threaten rare and endangered animal species as well as placing downstream communities at risk from dam collapse.
Elizabeth May, Executive Director of the Sierra Club of Canada said that the project is a black mark for Canada: "Canada's role both through CIDA and Fortis Inc. in promoting this appalling project should be publicly reviewed here in Canada. We are grateful that judges at this high level are looking into the legality of this project,” said May.
According to legal experts, the decision also sets an important precedent for civil rights: while it declined to stop construction in this case, the Privy Council ruled that it could grant an injunction in a civil case, just as it could grant a stay of execution in death row cases. The justices also ruled that poor litigants could get an injunction without having to pay for damages to the other side in order to reach a just result. "The fight for a safe and healthy environment is increasingly at the leading edge of civil rights," said Richard Buxton, a top environmental attorney in England, who represented environmental groups in this case. "This case shows the courts still find it hard to balance environmental interests against big money, but it is encouraging that they say that this balance should be made. It is a step forward for the environment."
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The Privy Council is the highest court of appeal for many Commonwealth countries, including New Zealand and many Caribbean and African nations, and the decision is likely to influence courts in other Commonwealth jurisdictions such as Canada and the U.K. as well.