Environmental non-profit Fishermen and Friends of the Sea (FFOS) has emerged victorious in its legal battle with the Environmental Management Authority (EMA) over access to its Environmental Impact Assessment (EIA) records.
In a decision delivered late last week, High Court Judge Devindra Rampersad ruled that a recent EMA policy, which granted limited access to copies of EIAs was unreasonable and improper.
FFOS filed the lawsuit in 2018 after it failed in its attempt to copy an EIA for the development of a resort at the Golden Grove and Buccoo Estates in Tobago.
The site was being considered by the Government and regional hotel chain Sandals but no deal eventually materialised.
The EMA only allowed the copying of 10 per cent of the report as it claimed that more access would breach third party rights under the Copyright Act.
FFOS’s lawsuit was stayed pending the court’s interpretation of the EMA’s power to manage its records and archives.
In his judgment, Rampersad noted that while the Environmental Management Act appeared to give the EMA a discretion by the inclusion of the word “may,” such was not in keeping with the overall degree of transparency encouraged by the legislation.
Rampersad also stated that in passing the legislation, Parliament would have considered the impact on copyright and constitutional rights.
“Impugning property rights of persons is not a step to be taken lightly but, having regard to the importance of the Act and its intentions, it is clear that Parliament thought it necessary to take the bold step to pass the Act for the greater national good,” Rampersad said.
Despite his ruling, Rampersad suggested that the EMA should shy away from offering copies of voluminous reports in favour of issuing digital scans.
“Making it available must also obviously extend beyond the carbon footprint heavy and hungry, spewing out of photocopies gulping down reams of paper and precious electric energy,” he said.
“In the context of the environment and environmental concerns, a request for photocopies of a 2,000 page EIA is anathema,” he added.
In a statement issued yesterday, FFOS said that while it was pleased with the outcome it maintained that the policy, which it and others had used for over two decades, should not have been suddenly and arbitrarily changed.
“Whilst FFOS has secured victory against suppression/restriction of information and this is to be celebrated in a free society, FFOS notes with sadness the entrenched position of the EMA making lofty claims to third party copyright that had not even been made by any such third party in this claim at public inconvenience and expense,” it said.
“This case should not have been necessary and FFOS should not have had to fight so hard for freedom to access information that is so obviously for public benefit,” it added, as it noted that its work had been stymied while the legal dispute was being determined.
FFOS was represented by Anand Beharrylal, QC, Ganesh Saroop and Alvin Pariagsingh. The EMA was represented by Anthony Viera, Anil Maraj and Nicole de Verteuil-Milne.
