Privy Council rules in favour of Fishermen and Friends of the Sea

LONDON, Nov 28, CMC – The London-based Privy Council has ruled as unlawful the fixed annual permit fee of TT$10,000 (One TT dollar=US$0.16 cents) for polluters regardless of the size and volume of contaminated water being released into the environment.
But in its ruling, the Privy Council, which is the country’s final court, noted that “this is clearly not a case where it would be appropriate to quash the regulations, or to declare them invalid”.
The non-government organisation, Fishermen and Friends of the Sea (FFOS) in 2008, FFOS mounted the public interest challenge of the government’s interpretation of the Polluter Pays Principle (PPP) of the Water Pollution Fees (Amendment) Regulations of 2001.
FFOS said that 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,” the group said
The PPP is a basic principle of international and environmental laws, where the costs of pollution and pollution remediation are paid for by those who cause pollution.
In its ruling the Privy Council said that it understands that the remedy sought by the appellants is not to quash the regulations or declaring them invalid, noting “such an order could create great uncertainty as to the status of the permits issued since the Rules were first applied in 2007, and any enforcement action taken in respect of them.
“It might even lead to claims for return of the fees already paid,” the Law Lords ruled, noting that in their view “subject to any further representations from the parties, the appropriate order is a simple declaration as to the unlawfulness of the permit fee as prescribed by the 2006 regulations, combined with an order of mandamus directed to the Minister to reconsider on the proper basis the fee to be prescribed and to make amended regulations accordingly.”
The Privy Council said that this is to be done as soon as practicable and in any event within a time to be fixed by the order, noting that subject to any representations, it would be minded to set a limit of three months from the date of this judgment.
“For the avoidance of doubt the order should indicate in terms that it is made without prejudice to the validity of anything previously done or fees collected under the Rules, or to their continuing operation pending the taking effect of amended regulations.
“Again, subject to any representations, the Board (Privy Council) is minded to order that the Minister pay the appellant’s costs,” adding that any representations on the matters should be made within three weeks of the judgment, and a further week allowed for any response.
In a statement, FFOS said the ruling, which overrides the Appeal Court’s 2015 ruling, is the significant step toward accountability regarding environmental laws and regulations.
It said that the Privy Council agreed that there was a lack of consideration by the then planning minister Penelope Beckles in arriving at this standard $10,000 permit fee for all polluters, regardless of the scale of pollution being committed.
FFOS said the ruling now sets a precedent for the interpretation and application of the Polluter Pays Principle moving forward.
It said the decision now requires that the government complies with the Privy Council’s decision and that directions have also been issued for the review and reconsideration of polluter permit fees in accordance with the ruling.
The Privy Council has also emphasized the need for permit fees to be structured in such a way as to be able to adequately fund the Environmental Management Authority (EMA) to correct environmental damage.
“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,” the FFOS said urging Planning Minister Camille Robinson-Regis and Attorney General Faris Al-Rawi to immediately review the legislation in accordance with the Privy Council ruling.