Photo: Hon. Orlando Habet, Minister of Sustainable Development
No guidelines are set out by the DOE or other government entities to direct the tribunal proceedings in the appeal process, Minister Orlando Habet confirmed.
by Marco Lopez
BELMOPAN, Thurs. Mar. 16, 2023
The three-person appeal tribunal assembled by the Minister of Sustainable Development, Hon. Orlando Habet, has been given the remit to confirm, vary, amend, or alter the decision handed down by the National Environmental Appraisal Committee (NEAC) and Department of the Environment (DOE) regarding the twice-rejected Waterloo Investment Holdings Limited project for the expansion of the cargo port and construction of a cruise terminal at the Port of Belize Limited.
That tribunal, according to Minister Habet, will establish its own rules and guidelines that will govern the process which will lead to a decision on the appeal lodged by Waterloo. Section 27B of the Environmental Impact Assessment (Amendment) Regulations, S. I. 24 of 2007 confirms this—empowering the Tribunal to create its procedural rules and admit as evidence any matter which they view as being helpful to them in reaching a decision in line with the Environmental Protection Act and EIA regulations.
The chairperson of the Tribunal is Justice Patricia Farnese, who is a member of the judiciary, as is required by section 27(2) (a) of the regulation. Professor and marine biologist Terence P. Hughes was also selected to sit on the tribunal. Dubbed “Reef Sentinel” in 2017 by the Nature journal, Hughes is well known for his global research in coral bleaching caused by climate change and is the director of the Australian Research Council, Center of Excellence, and Coral Reef Studies.
We note that amendments to the Environmental Impact Assessment Regulations were legislated to allow for the bypassing of Senator Kevin Herrera as a potential member of the Tribunal (although by default he would have been selected as a representative of the private sector) due to a perception of conflict of interest noted by Minister Habet.
Minister Habet explained, “In this case, looking at the concerns of all around, the Belizean community, ourselves looking at the persons who would be involved, we had, because of perception, believed that after, getting also from the media and everybody else, concerns that there was a possibility, there was the perception that the current sitting Senator would have been biased because of what transpired before.”
He said that he wrote to the sitting Business Senator, who denied having any bias in favor of or against the Waterloo appeal, notwithstanding the involvement of his brother, Allan Herrera, as head of the local team of consultants for Waterloo’s project, and the position taken by such entities as the Belize Chamber of Commerce (a part of the business community he represents) in support of the Waterloo project.
“I took it upon myself from advice from the Ministry to write the Senator asking if he believes there was any conflict of interest, which he expressed through a response letter that there was no conflict of interest from his perspective; and after reviewing it with my team, and with recommendations from our legal counsel, we thought that, yes, there was, so we asked that he be recused from that, and that we select somebody else,” Minister Habet said.
That “somebody else” is Lucy Fleming. If the name seems familiar, she has been vocal as the foster grandmother of Laddie Gillett, who has, throughout the trial of the police corporal accused of killing Gillett, been calling for justice. Fleming has been involved in ecotourism for decades and is considered, along with her husband Mick, as a pioneer within the jungle tourism sphere in Belize. They are the founders of Chaa Creek Lodge, and according to Minister Habet and Prime Minister Hon. John Briceño in recent interviews, Mrs. Fleming’s long involvement in the tourism sector and business community makes her the next best choice.
The wide-reaching powers of the three-person tribunal to reverse the technical decision made by the 16-member NEAC is being seen, however, as a usurpation of those professionals’ authority. That body has decided twice that the best course of action to ensure sustainable management of the country’s marine resources and protection of the environment would be to reject the approval of the Waterloo project.
“I believe that it would have to do more with what the Tribunal is going to look at, because if they are going to look at the technical part completely and then try and re-establish what was being discussed or reviewed at the technical level, then possibly you’ll be saying looking at 3 persons versus 14 or 15 who sat at the NEAC; but if they are going to look at the process itself, whether or not it was fair, if it went through a legal process, then that is something else; then maybe one person can do that. We see that in the courts, where one judge makes a decision over whatever matters have gone to him or her,” Minister Habet explained to local media.
The committee pointed out in a document that explained its second rejection of the project that the reasons for its denial of approval included the significant dredging associated with the development, and the fact that they were not assured that the methodology proposed in the 2022 EIA report submitted by the company would effectively contain the dredged material. The risk of failure of the geotextile nearshore solution led the committee to recommend that the DOE shelve the project, since the potential failure of the untested containment system could cause the country’s marine eco-system great harm, Chief Environmental Officer, Anthony Mai said in a 2022 interview.
Exactly what aspect of the project will be looked at by the tribunal is still unclear, and we are unsure if the tribunal will look at legal, or technical shortfalls in the process – or any other aspect of the project singularly or as a whole. There is also no directive for the proceeding to be conducted publicly, but the tribunal does have the authority to approve such a public appeal.
“According to the law, led by the person who leads the tribunal, who is the judge, they will decide on the process,” Minister Habet said.
Importantly, the Tribunal will not be bound by the rules of evidence, and is allowed under the legislation to admit matters which in its opinion will assist them to arrive at a decision in line with the Environmental Protection Act. This means that the Tribunal will have the discretion to admit evidence that might not be admissible in a court of law, and to evaluate that evidence more informally and flexibly. This is usually done to facilitate expedited resolutions of disputes.
As mentioned, the Tribunal has wide powers ranging from confirming to reversing the decision of the DOE. If they do decide to vary, alter, or reverse a decision, then they must provide a written decision before referring the matter back to the DOE. All 3 members of the Tribunal must be present for a quorum, the regulations state.