Order for Second Reading read

            The Attorney General (Mr Y. Varma): Mr Speaker, Sir, I beg to move that the Environment and Land Use Appeal Tribunal Bill (No. IV of 2012) be read a second time.

Mr Speaker, Sir, this Government’s motto, as is evident from the Government Programme 2012-2015, is “Moving the Nation Forward”.  And one of the means of achieving this objective and making sure that our society does truly and effectively move forward.

Paragraph 31 of the Government Programme states, and I quote –

“Several existing Tribunals, including the Environment Appeal Tribunal where major projects are currently the subject of litigation, will be consolidated to enable them to sit full time so that cases are heard and disposed of expeditiously while ensuring cost effectiveness and rationalization in the use of resources”.

In the Budget Speech of 2012, Mr Speaker, Sir, it was mentioned at paragraph 326 that to speed up decisions on appeal cases, Government will be consolidating twelve Appeal Tribunals into three, namely an Environment and Land Use Appeal Tribunal, a Revenue and Valuation Appeal Tribunal and a Regulatory Authority Appeal Tribunal.

Mr Speaker, Sir, this Bill when voted and proclaimed will set up the Environment and Land Use Appeal Tribunal. As hon. Members of the House are probably aware, the Environment Appeal Tribunal (“EAT”), established under the Environment Protection Act in order to hear and determine appeals relating to Environmental Impact Assessment (EIA) licences and Preliminary Environmental Reports (PER), provided for in the Environment Protection Act.

Secondly, the Town and Country Planning Board (“Board”), established under the Town and Country Planning Act and which, inter alia, hears appeals relating to Outline Planning Permissions and Building and Land Use Permits, presently operate on a part-time basis given that the Environment Appeal Tribunal is chaired by a Magistrate of the Intermediate Court on assignment by the Public Service Commission to perform duties on a part-time basis, and the Board, as per section 3(1)(a) of the Town and Country Planning Act, is chaired by a person not below the rank of Principal Assistant Secretary.

Mr Speaker, Sir, in view of the fact that the tribunal is not operating on a full-time basis, appeals lodged before the EAT and also before the Board are taking longer to be heard and disposed of.  Mr Speaker, Sir, several major projects are currently the subject of litigation before these “tribunals”.  In fact, there are presently 14 appeals before the EAT and about 300 outstanding appeals before the Town and Country Planning Board.  There is, therefore, an urgent need to expedite the hearing and determination of cases given that time is of the essence in such types of appeals.

This Bill, Mr Speaker, Sir, therefore aims at merging the Environment Appeal Tribunal and the Town and Country Planning Board into a single Tribunal with a full-time Chairperson and vice-Chairperson, with a view to expediting the determination of appeal cases lodged in relation to environment and land use-related issues.  This will allow the Town and Country Planning Board to devote more time to its major functions, such as the preparation of outline and detailed schemes.

The Bill thus provides for the establishment of a single Tribunal which shall operate on a full-time basis and shall hear appeals relating to matters that are directly or indirectly related to the environment and the manner in which land is made use of.  The Tribunal will accordingly deal with –

• Building and Land Use Permits and Outline Planning Permissions issued or refused by Municipal City Councils, Municipal Town Councils and District Councils under the Building Act, the Local Government Act 2011 and the Town and Country Planning Act;
• morcellement permits granted or refused under the Morcellement Act;
• Environmental Impact Assessment licences and Preliminary Environmental Report approvals granted or refused under the Environment Protection Act.

Mr Speaker, Sir, I must point out that the draft Bill was circulated among various stakeholders, including the hon. Chief Justice, the Ministry of Housing and Lands, the Ministry of Environment and Sustainable Development, the Ministry of Local Government and Outer Islands, the Town and Country Planning Board, and the Environment Appeal Tribunal for their views and comments, and due consideration has been given to the representations made in the finalisation of this Bill.

Mr Speaker, Sir, I shall now take the House through the salient features of the Bill. The Tribunal, which is established under clause 3 of the Bill, shall in fact consist of –

–           firstly, a Chairperson, who shall be a barrister of not less than 10 years’ standing, appointed by the Public Service Commission;

• secondly, one or more vice-Chairpersons (which is a totally new provision), who shall be a barrister or barristers of not less than 5 years’ standing, appointed by the Public Service Commission, and
• thirdly, such other members as may be necessary to enable the Tribunal to discharge its functions under the Act and the relevant Acts as defined in the Bill.

Moreover, under clause 3(4) of the Bill, where the subject matter of an appeal relates to a technical field, the services of a suitable expert can be enlisted in the field, to act as member of the Tribunal on an ad hoc basis for such period as may be necessary.

It is also to be noted that by virtue of clause 3(2) of the Bill, the Chairperson and the vice-Chairperson may be called upon by the Public Service Commission to act as Chairperson or vice-Chairperson of any tribunal established under any other enactment.

Mr Speaker, Sir, another major improvement which this Bill seeks to bring about is that by virtue of clause 3(5) of the Bill, the Tribunal shall sit in one or more divisions.  Furthermore, provision is made under clause 3(5)(c) of the Bill for a division to be set up on a temporary basis for a period not exceeding one year, where there is a backlog of cases before the Tribunal.  This will ensure that the Tribunal is not, from the day of its establishment, hampered in its functioning due to such backlog of cases.

Provision is also made in the Bill for the appointment of a Secretary to the Tribunal, and for the Secretary to Cabinet and Head of the Civil Service, at the request of the Chairperson, to designate such public officers as may be necessary to enable the Tribunal to discharge its functions under the Act.

As regards the jurisdiction of the Tribunal, it is, under clause 4(1) of the Bill, given jurisdiction to hear and determine appeals under the Environment Protection Act, the Local Government Act 2011, the Morcellement Act and the Town and Country Planning Act.  Moreover, I would here like to draw the attention of the House to the fact that power is also given, under clause 4(2) of the Bill, to the Chairperson or, in his absence, the vice-Chairperson, in respect to any matter which is due to be heard by the Tribunal, on application made to him by a party, to sit alone for the purpose of making such orders, including an order in the nature of an injunction, as he thinks fit, where he is of opinion that, for reasons of urgency and the likelihood of undue prejudice, it is necessary to do so pending the hearing of the matter.

Mr Speaker, Sir, as matters presently stand, parties have to lodge an application for an injunction before the Judge in Chambers in order to stay an Environment Impact Licence and Preliminary Environment Report, the above provision will consequently render remedies like injunctions more accessible and ensure speedier justice.

As far as proceedings of the Tribunal are concerned, they are, subject to clause 5 of the Bill, to be regulated by the Tribunal itself.  The procedure for the holding of proceedings and the lodging of appeals before the Tribunal, and the powers of the Tribunal are therefore set out in clause 5.

It is here worth noting that proceedings of the Tribunal are to be conducted with as little formality and technicality as possible and shall not preclude an endeavour by the Tribunal to effect an amicable settlement between the parties.  Furthermore, by virtue of clause 5(5) of the Bill –

“A party before the Tribunal may be represented by a barrister or an attorney or, with the leave of the Tribunal, be assisted by a person having expertise in the subject matter of the appeal”.

Insofar as appeals are concerned, a time limit of 90 days is provided for under clause 5(7) for the Tribunal to hear and make a determination, except where there is a valid reason, and with the consent of the parties.

Furthermore, clause 6 of the Bill, which relates to appeals to the Supreme Court, makes provision for any party who is dissatisfied with the final decision of the Tribunal, in relation to an appeal under clause 4 as being erroneous in point of law, to appeal to the Supreme Court.  Such appeals are to be prosecuted in the manner provided by rules relating to appeals from final judgments of a District Court in civil matters.

As for clause 7, it provides for the making of rules by the Tribunal, for the purpose of the institution and hearing of appeals before it.

Clause 8, for its part, makes consequential amendments to the Environment Protection Act, the Local Government Act, the Morcellement Act, the Planning and Development Act and the Town and Country Planning Act in order to give jurisdiction to the Tribunal to hear and determine the matters specified in that clause.

Finally, Mr Speaker, Sir, clause 9 of the Bill (which relates to transitional provisions) provides, inter alia, that where the hearing of any matter, or appeal from the decision of the Board or the Environment Appeal Tribunal has at the commencement of the Act started before the Board or the EAT, the Judge in Chambers or the Supreme Court, as the case may be, that matter shall continue to be dealt with by the Board, the EAT, the Judge in Chambers or the Supreme Court, as the case may be, until final determination.

As regards the hearing of matters which have not started, but are pending at the commencement of the Act, before the Board or the EAT, those matters shall, at the commencement of the Act, be taken up and determined by the Tribunal.

Mr Speaker, Sir, the grouping of different tribunals under the umbrella of a sole Tribunal will not only reduce administrative costs and ensure an efficient and better use of resources and logistics, but will also impact favourably on future investment given that the delay caused to the whole process of obtaining approvals, licences and permits will be considerably reduced.  This will, therefore, undoubtedly lead to an environment more conducive to promote and enhance business and investments.

I am therefore of the opinion, Mr Speaker, Sir, that the Bill being proposed today should be favourably welcomed.

I will end by thanking colleague Ministers for their support in the finalisation of the Bill.  A special thanks to my officers, including Mrs Gaitree Manna, the actual Master & Registrar, for their unflinching support and cooperation.

With these words, Mr Speaker, Sir, I commend the Bill to the House.

The vice-Prime Minister, Minister of Public Infrastructure, National Development Unit, Land Transport & Shipping (Mr A. Bachoo) rose and seconded.

 

Mr Varma: Mr Speaker, Sir, I would like, first of all, to thank hon. Ministers who have intervened and congratulate them.  I would like to extend my congratulations to hon. Ganoo, hon. Bhagwan and hon. François as well for their interventions.

Mr Speaker, Sir, I will go one by one on the points that were raised by hon. Members.  Hon. Ganoo raised the point that environment and land use should not have been lumped together.  Actually, Mr Speaker, Sir, it is clear from the action of Government and what Government tends to do, that there should be judicious use of resources.  We do agree that these two aspects, environment and land use, are distinct, but they are not so different as to make them incompatible.  Therefore, so as to make judicious use of resources, it is the policy of Government that these two, that is, the Board and the Environment Appeal Tribunal, should be merged.

Mr Speaker, Sir, the point was raised by the hon. First Member for Savanne and Black River as regards the 90 days from the start of the hearing, that is, the determination should be made.  It cannot be from the time of lodging, Mr Speaker, Sir, because what if 20 cases are lodged on the same day!  Indeed, reference has, time and again, been made by Members of the Opposition to the Planning Appeal Tribunal.  Actually, in the Planning Development Act which was passed in 2004, it was clear that the Tribunal would endeavour to dispose of the matter within six months. There was no exact time frame that we have put in our law.  In this Bill, Mr Speaker, Sir, there is a time frame of 90 days, unless there is consent of parties for the time frame to be extended.

Mr Speaker, Sir, as regards the question of cost, the hon. First Member for Savanne and Black River raised the point. Under clause 5 (10) (a), the Tribunal may make such order as it thinks fit as to the costs payable by the losing party.  It means that this is catered for by the Bill. As far as the declaration of assets is concerned, under clause 7, it is said –

“The Tribunal may make such rules for the purpose of the institution and hearing of appeals before the Tribunal as it deems fit.”

Mr Speaker, Sir, as regards the backlog of cases, the Chief Justice has been consulted and he is in perfect agreement that a Senior District Magistrate would be delegated full-time to chair the special division to be able to clear the backlog. This is catered for again, Mr Speaker, Sir.

There is a pertinent point which was raised by the hon. First Member for Savanne and Black River, and I am thankful to him, as regards clause 8 (5) (b). I am thankful to him for having drawn the attention of the House. There is obviously an editorial error which will be taken care of at editorial level, Mr Speaker, Sir.

As regards the members of the Tribunal, the point has been raised by several Members of the Opposition. Again, the members of the Tribunal will be appointed in consultation with the hon. Minister of Environment, the hon. Minister of Local Government and the hon. Minister of Housing and Lands. There is a provision that consultation should also be held with the hon. Minister of Civil Service.  Why is it so, Mr Speaker, Sir?  It is because we do not want to have people who do not have experience. That is why there is a requirement that the Attorney General shall consult the hon. Minister of Civil Service as well, to get people who have experience in the relevant fields, whether they have retired or not.

Mr Speaker, Sir, a point was raised by hon. Rajesh Bhagwan as regards the cases which are pending before the Tribunal for the CT Power and Gamma Coventa. The CT Power case is before the Tribunal and Gamma Coventa case is before the Environment Appeal Tribunal and, as per the transitional provisions, these will be dealt with by the existing Tribunal.  It is only cases which are pending, but have not yet been heard, that will be dealt with by the new Tribunal.

Mr Speaker, Sir, hon. François raised a couple of points as regards sittings in Rodrigues. Clause 5 (2) (a) of the Bill clearly states –

“The Tribunal shall sit at such time and place as the Chairperson may determine.”

If necessary to sit in Rodrigues, there is no doubt that the Chairperson will determine that the Tribunal will sit in Rodrigues.

Mr Speaker, Sir, it is quite sad that hon. Seeruttun is not here because normally when certain points are raised by a hon. Member, he has to be here in order to hear the other side of the story, of course.  He stated, Mr Speaker, Sir, that the Environment and Land Use Tribunal will not respond to the needs.  Mr Speaker, Sir, we have taken the initiative to set up this Environment and Land Use Appeal Tribunal.  Why have we taken the initiative?  It is because we all know that there are several cases which are taking so much time to be heard before the Town and Country Planning Board and the Environment Appeal Tribunal.  We have taken the initiative to set up a full-time Tribunal, with a full-time Chairperson and vice-Chairperson so that the appeals are heard and disposed of within the shortest possible delay.

He raised the point, as hon. Minister Mohamed rightly pointed out, that the Prime Minister said that a special tribunal will be set up to deal with the CT Power case. Mr Speaker, Sir, this has never been the case!  How can he say such things, and just throw mud on whatever the Government is trying to do and then walk away?  Mr Speaker, Sir, the hon. Prime Minister stated that we are going to set up a tribunal, the Environment and Land Use Tribunal, to deal with the environment and land use issues, and that’s all. At no point in time, Mr Speaker, Sir, did the hon. Prime Minister state that a special tribunal will be set up to deal with the CT Power case!

Mr Speaker, Sir, again, he stated that the Tribunal a été taillé sur mesure.  What does that mean? Quelle mesure, and to do what?  Is it to hear appeals with the shortest possible delay?  Is it to encourage investment in the country?  Is it to send a right signal to the business community?  If he does mean taillé sur mesure pour ces choses, we agree!  But what did he try to insinuate, Mr Speaker, Sir?  What did he try to infer by saying that the Chairperson or the vice-Chairperson have already been selected?  Mr Speaker, Sir, we, on this side of the House, believe in institutions; we believe in the independence of institutions.

(Interruptions)

Mr Speaker, Sir, even before this Tribunal is set up, to throw mud on such an institution, that the Government has already chosen the Chairperson and vice-Chairperson, when they have to be appointed by the Public Service Commission!  Mr Speaker, Sir, they will go in history as people who have always been against good things in this country.

Mr Speaker, Sir, the point was also raised by the hon. Second Member for Vieux Grand Port and Rose Belle that the Chairperson should be a Barrister with management qualifications. Mr Speaker, Sir, the Magistrates that we have before our courts, the Judges that we have, do they not administer the courts well?  Is that what he is trying to say?  We have so many Magistrates and Judges in this country, and we cannot cast a shadow of doubt on the integrity and independence that they have shown.

The last point that was raised was about giving too much power to the Chairperson when we say that injunctions will be heard before the Tribunal. The point was canvassed by hon. Ganoo, the First Member for Savanne and Black River, and he praised the Government for that initiative, Mr Speaker, Sir.

Mr Speaker, Sir, I should say that I was quite surprised to hear the intervention of the hon. Second Member for Port Louis South and Port Louis Central, when he spoke about the requirements as per this Bill that the vice-Chairperson should have at least 5 years’ standing at the Bar.

“No person shall be qualified for appointment as a Judge of the Supreme Court unless he is, and has been for at least 5 years, a Barrister entitled to practise before the Supreme Court.”

Where does that 10 years come from, Mr Speaker, Sir?  Is the hon. Member trying to mislead the House?

(Interruptions)

Mr Speaker: Sorry, the hon. Minister must withdraw the words “trying to mislead the House.”

Mr Varma: I have withdrawn, Mr Speaker, Sir. Again, the hon. Member has time again stated that the Members will be political appointees, that they will be appointed by the Attorney General, and in consultation with the Ministers concerned.  Mr Speaker, Sir, the hon. Member has referred time and again to the Planning Development Act, and in that Act it is clear, under section 53, that –

“The Members would have been appointed again by the Attorney General, in consultation with the Ministers concerned”.

So, which is which?  When they did it in 2004, there was no political interference, and when we import the same logic in this piece of legislation, then it is political!  Mr Speaker, Sir, which is which?

Mr Speaker, Sir, again the hon. Member raised the point that the appeal to the Supreme Court that we have put in this Bill should be on a point of law.  The hon. Member has criticised it.  When they did it in 2004, section 60 –

“The appeal to the Supreme Court will be on a question of law.”

then it was correct. When we do it, we are wrong. The hon. Member again criticised that the decision of the Tribunal should be of the majority.  When they did it in 2004, section 59(4) –

“A re-appeal before the Tribunal shall be determined by the opinion of the majority members present.”

then they were right, and we are wrong today.  Mr Speaker, Sir, which is which?

As regards damages, clause 8, …

(Interruptions)

I am sorry, if you want to say anything, you can stand up and speak.

(Interruptions)

Mr Speaker: Hon. Minister, do address the Chair!

Mr Varma: He is in a sitting position, Mr Speaker, Sir, and he made an insinuation.

Mr Speaker: Please, sit down.  Do you have a point of order?

Mr Varma: Mr Speaker, Sir, on a point of order.  I am intervening, and from a sitting position …

Mr Speaker: That is not a point of order.

Mr Varma: Yes, the hon. Member has made an insinuation against me.

Mr Speaker: What is the insinuation?

Mr Varma: I won’t bother to repeat that, Mr Speaker, Sir, because I won’t reduce myself to his level.

Mr Speaker: Please, sit down. You are addressing the Chair and not the hon. Member. You address me, and if there is a point of order, you raise it.

Mr Varma: What I have said, Mr Speaker, Sir, is that I won’t reduce myself to his level, that’s all.  Mr Speaker, Sir, again the hon. Member has got the guts and the courage to stand up in Parliament to criticise.  He said that we don’t know the elementary rules of drafting, Mr Speaker, Sir, as if we have to learn from him.

Mr Speaker: Can I remind the hon. Minister that a Member of this House has the right to stand up and criticise the Bill, so long that he is criticising the Bill within the framework of the Standing Orders?  If the hon. Minister does not agree with the criticism, he has just to reply to him, but he cannot use the word that he has not the right to do this or that.  The hon. Member has the right to criticise.  It is the right of the hon. Minister to reply to the hon. Member.

Mr Varma: This is precisely what I’ll do, Mr Speaker, Sir.

Mr Speaker: Yes, but don’t try to use provocative words.

Mr Varma: Yes, but I find it …

Mr Speaker: No, I have given my ruling, and you have to respect my ruling.  Don’t use provocative language at this time of the hour.

Mr Varma: This is what I am doing, Mr Speaker, Sir.  Mr Speaker, Sir, the hon. Second Member for Constituency No. 2 stood up in Parliament and said that those who have drafted the Bill don’t know the elementary rule of drafting.  I should remind the House that this piece of legislation – I have stated that in the Second Reading speech – was sent to the hon. Chief Justice, and the hon. Chief Justice consulted a team of judges.  Mr Speaker, Sir, again, we have got an experienced Parliamentary Counsel in the person of Mrs Narain.  We have got a consultant in the person of Sir Victor Glover, a former Parliamentary Counsel and former Chief Justice of Mauritius.  We have Mr Dhiren Dabee who vetted his Bill.  He is the Solicitor General, a Senior Counsel and former Parliamentary Counsel.  Mr Speaker, Sir, with these people around in the office, we have to learn the elementary rules of drafting from someone else!  The House will appreciate …

(Interruptions)

Mr Speaker: Order! Address the Chair!

Mr Varma: Mr Speaker, Sir, again the last point that I wish to rebut.  The hon. Second Member for Constituency No. 2 stated that the Planning and Development Act was never enacted.  Mr Speaker, Sir, what does enactment of the law mean?

(Interruptions)

Mr Speaker: Order! Let me listen to the hon. Minister.

Mr Varma: What does enactment of the law mean, Mr Speaker, Sir?  It means it goes through Parliament; it is passed and receives the presidential assent.  Well, the House will appreciate.

Mr Speaker, Sir, I think I have replied to most of the points raised by hon. Members, and I again commend the Bill to the House.

Question put and agreed to.

Bill read a second time and committed.