1 Jun 2020 - by A4ID

Setting a New Legal Precedent to Protect Marine Eco-Systems in Mauritius

A4ID’s partners collaborated to secure a ground-breaking victory on locus standi in environmental matters in Mauritius.

A4ID’s Legal Partner, Shearman & Sterling, assisted the Mauritian Sea Users Association with crucial legal research, enabling this non-profit environmental association to continue proceedings with the Mauritius Environmental Appeal Tribunal. In the course of challenging the Minister of Environment’s decision to grant an Environmental Impact Assessment (EIA) license for the development of an industrial fish farm in the coastal waters of Mauritius, the Sea Users Association established that, as an environmental non-profit, it had locus standi or ‘standing’ in the proceedings. The Tribunal’s ruling in support of the Sea Users Association’s case confirmed their legal right to represent the rights of sea users and the interests of the marine eco-system, ultimately protecting Mauritius from biodiversity loss, coral reef damage, sea pollution and increased shark attacks.

Mauritius typically derives 1.5% of its GDP growth from the fishing industry, with the export of produce from Mauritian fisheries and aquaculture accounting for 17.6% of the country’s total international sales income. The Aquaculture Master Plan was introduced in 2007 to strengthen industrial fishing as a pillar of the national economy, designating 20 large-scale sites both in lagoons and offshore, and 11 smaller sites for new industrial farms and fisheries. These allotted sites were intended to supplement the low levels of marine capture, providing a regular supply of cultivated produce. However, government statistics indicate an 11% decline in the country’s marine capture since 2017, suggesting the natural fish population surrounding Mauritius has declined in recent years.

As a non-profit environmental association representing the interests of Mauritian sea users, the Sea Users Association (along with a group of hotels), sought to challenge the EIA licence granted for the development of a new industrial fish farm, a kilometre off the western coastal waters of Mauritius. The proposed area is a breeding and resting ground for dolphins and whales, as well as a popular location for water sports activities, frequented by locals and tourists. The Sea Users Association argued that the EIA licence had been granted on the back of an EIA report, which failed to comply with the requirements of the law. Notably, it failed to adequately address the risks of the spread of disease and damage to biodiversity through the escape of farmed fish, increased pollution from food and faeces, disruption to the marine ecosystem, and the risk of shark attacks resulting from the settlement of sharks in the area.

The Sea Users Association also wished to challenge the absence of a baseline study of the marine environment in the area, which was essential to enable the assessment of the impact of the project on marine life. However, with public interest litigation strictly prohibited in Mauritius, and in response to the Minister of Environment contesting their right to challenge his decision, the Sea Users Association first needed to defend its locus standi or ‘standing’ in the proceedings.

Obtaining the Right to Represent Marine Interests

The Sea Users Association approached A4ID for legal assistance to bring proceedings before the Environmental Appeal Tribunal to revoke the EIA licence. In particular, the Sea Users Association aimed to convince the Tribunal that the law’s requirement for locus standi to only be granted to ‘persons aggrieved’ by a decision, ought to be interpreted liberally so as to allow an environmental association to initiate legal action against a decision that impacts the environment. The country’s hybrid common law and civil law system means that the Mauritian judiciary readily seeks guidance from foreign law, in particular English law, when dealing with such matters. The Sea Users Association therefore requested a memorandum advising on comparative case law from various jurisdictions, including Australia, Britain, Canada, France, India, New Zealand and Singapore.

Teams from Shearman & Sterling’s London and Singapore offices worked alongside an Indian law firm to assist the Sea Users Association to successfully petition their right to locus standi, directly impacting the future of environmental and marine advocacy in Mauritius. The Mauritius Environmental Appeal Tribunal determined the EIA licence had been granted with insufficient research into the potential adverse impacts of increased industrial fishing. Some of the English case law researched by Sherman & Sterling was adopted by the Tribunal, which held that it was proper to adopt a liberal approach to locus standi in environmental matters.

Setting a New Legal Precedent and Working Towards the SDGs

Together with Shearman & Sterling, the Sea Users Association has helped the Mauritian public to secure a ground-breaking victory that will allow for improved safeguarding of the Mauritian marine environment. The case not only prevented further damage to the biodiversity of Mauritian waters through the development of another industrial fish farm, but also set a precedent to ensure environmental organisations are able to legally challenge future developments that threaten the natural environment of Mauritius. This innovative collaboration between A4ID’s Legal and Development Partners advances SDG 14 on ‘Life Below Water’ and SDG 12 on ‘Responsible Consumption and Production’. The success of this project will hopefully set in motion similar collaboration to support progress towards the SDGs on matters of public interest, be it in environmental law, gender equality or public health.