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07 Aug 2020
BY Valentine Mayer

Can our environmental laws protect our marine ecosystem from oil spills?

Mauritius may be experiencing its first major oil spill and a potential ecological catastrophe following the running aground of the MV Wakashio on 25 July 2020. The vessel ran aground on a reef off Pointe D’esny in the vicinity of Blue Bay Marine Park. Whilst questions pertaining as to how the vessel ran aground on the reef of Mauritius remain unanswered, in view of this catastrophic turn of events, it begs the question as to whether our environmental laws will efficiently protect our marine ecosystem and remedy any harm caused to our environment.

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The Mauritian population was reassured on a number of occasions by the Government that there was no occurrence of any oil spill and that all precautions were being taken to prevent any oil spillage. A number of measures were taken by the relevant institutions including:

  • daily seawater samples being carried out;
  • the deployment of an approximate 332 metre boom at the entrance of Blue Bay Marine Park;
  • the signature of a salvage agreement for remedial actions to be taken; and
  • a cleanup of the shore line carried out on 27 July 2020.

Despite the measures, traces of an oil spill have been reported to have reached the coasts of Mahebourg and Riviere des Creoles on 6 August 2020. Furthermore, even though the salvage team and tug for the salvage exercise have been in Mauritius since 30 July 2020, no salvage operations have been carried out to date.

In times of an unprecedented catastrophe such as the present one, our public institutions will be strenuously tested, and with it, the strength and efficacy of our legal framework. Although we cannot as of now assess the impact of the measures which have and will be implemented in an attempt to protect our marine ecosystem, we may weigh whether our existing laws are efficient in dealing with oil spills and their impact on the environment.

An entire part of the Environment Protection Act 2002 (the “Act”) is dedicated to spills and environmental emergencies. The way an oil spill is tackled in the Act is, at the forefront, through the imposition of a number of obligations on the owner of the pollutant being spilled. The owner of a pollutant is identified under the Act as the owner or the person having the charge, management or control of a pollutant which is spilled or unlawfully discharged. In view of the broad definition given by the legislator, there may be multiple owners of a pollutant for the purpose of the Act, hence, multiple parties may be subject to the same obligations and liabilities.

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The obligations of the owner of a pollutant are multi-faceted. Firstly, he must notify the Director of the Environment (“the Director”)of the spill, the circumstances thereof, and of any action plan taken or proposed in relation to the spill. He must then do everything practicable to prevent, eliminate or reduce the adverse effects of the spill, and he must do everything practicable to restore the environment to the state it was in prior to the spill. When considering the afore-mentioned obligations, one can only ask whether, in matters of spills and ecological catastrophes, it is ever possible to restore the environment to its former state and to repair damage which may be irreparable.

In the circumstances where the owner of the pollutant fails to comply with the aforementioned obligations, cannot promptly be identified, or requires the assistance of the Director, the Director:

  • conserves a significant control over the measures put in place in the prevention, elimination or reduction of the adverse effect of the spill;
  • the restoration of the environment to its former state and;
  • the disposal of the pollutant.

In order for the Director to effectively action these measures, the Act grants substantial powers to any person engaged in an action or measure taken by the Director to enter any premises without warrant, construct or set up any structure, machinery, materials and equipment on any premises and remove the pollutant.

In view of the possibility of the Director incurring costs and expenses in devising and implementing the afore-mentioned measures, the Act ensures that the Director will recover these costs and expenses which are deemed to be civil debts owed by the owner of the pollutant to the Government of Mauritius. 

But what about the prejudice suffered by citizens, by those whose livelihood depend on the sea, by those who wish to live in a pollution free environment, by the future generations who will have to bear the consequences of today’s disaster? And what about the financial means of the owner of the pollutant to compensate?

The Act aims to safeguard any person affected in any way by a spill and afford the latter a right to damages from the owner of a pollutant. In an endeavour to facilitate the claims of individuals, the Act imposes the following presumptions on the owner of a pollutant:

  • the owner of a pollutant is presumed to be liable for any damages caused by a spill;
  • the owner of a pollutant which is spilled will always be deemed to be the guardian of the pollutant;
  • a pollutant will always be deemed to be in the custody of the owner of the pollutant;
  • the burden of proving that the damage was not caused by the pollutant which was spilled, will always rest on the owner of the pollutant

Although the Act aims at protecting the rights of individuals to compensation, can it be said that it safeguards our environment from ecological disasters? It is apparent that our laws place more emphasis on the cure than on the prevention, but in matters of environmental laws, shouldn’t an approach which aspires to preventing harm be favoured over one which aims at remedying it?

 

Reviewed by Thierry Koenig, Head of ENSafrica | Mauritius and Maxime Sauzier, Director, ENSafrica | Mauritius

 

Valentine Mayer

Associate | ENSafrica | Mauritius |

vmayer@ENSafrica.com

+230 5981 9253