Rethinking The Regulation of Environment Impact Assessment and Precaution in Mauritius

Journal of African Law, 61, 2 (2017), 227–251 © SOAS, University of London, 2017.

doi:10.1017/S0021855317000110 First published online 16 May 2017
Rethinking the Regulation of Environment

Impact Assessment and Precaution in Mauritius
Odile Juliette Lim Tung*
University of the Witwatersrand, South Africa
ojltmru@gmail.com
Abstract
As a small island developing state, Mauritius needs to manage its natural assets with a
precautionary approach, especially as the tourism industry is one of the main pillars of its
economy. While the precautionary principle has no statutory value in Mauritius, it serves
as a guiding principle in environmental decision making. Since 1993, the assessment of
impact has been mandatory under the Environment Protection Act (EPA) for major
development activities, to avoid activities that may have a significant adverse impact
on the environment and society. The local impact assessment procedure currently
includes two categories of undertakings listed in the EPA, namely the environment
impact assessment (EIA) and the preliminary environment report for undertakings
with less environmental and socio-economic impact. This article examines the
Mauritian EIA regulatory mechanism and seeks to strengthen the EIA process with a
precautionary approach, to achieve more effective regulation and implementation.
Keywords
Environment Impact Assessment (EIA), preliminary environment report, EIA mechan-
ism, Mauritius, regulation, precautionary approach
INTRODUCTION
With limited resources and a fragile environment, the Republic of Mauritius
as a small island developing state (SIDS) needs to identify and implement pre-
cautionary measures in its environmental regulatory system.1 The sustainable
* Licence en droit, Montpellier, France; maîtrise en droit (Montpellier); diplôme d’études

appliquées en droit (Montpellier); doctorat en droit (Montpellier). Post-doctoral research
fellow, Mandela Institute, School of Law, University of the Witwatersrand, South Africa.
The author wishes to acknowledge funding from the North-West University, South
Africa, for the preparation and submission of this article during her post-doctoral
research fellowship at its Faculty of Law.
1 Sec 34(A)(vii) of the Barbados Plan of Action includes increasing attention to national
physical planning in both urban and rural environments and the use of environmental
impact assessments and other decision-making tools. See the “Declaration of Barbados”
and “Programme of action for the sustainable development of small island developing
states” in UN “Report of the global conference on the sustainable development of
small island developing states”, res 1, annexes I and II, available at: <http://www.un.
org/documents/ga/conf167/aconf167-9.htm> (last accessed 21 February 2017).
 J O U R N A L O F A F R I C A N L AW VOL , NO 
use of its terrestrial natural resources as well as the development of its marine
territory2 require adequate environmental assessments, and monitoring of
activities and development projects. Precaution marks a shift from post-
damage control to pre-damage control3 of risks (or anticipatory measures),
and requires the evaluation of activities to prevent possible harm to the envir-
onment and human health. Both the environment impact assessment (EIA) (as
a procedure prior to decision making) and the precautionary approach (as a
policy to inform / govern decision making) promote informed decision mak-
ing and influence environmental outcomes.4 An adequate identification and
prediction of impact through an EIA enables the avoidance of environmental
disturbances that may cost more to resolve after they have occurred than
before they do so. It provides information about the likely impact of a devel-
opmental project and alternatives or mitigation measures needed to bring the
project to fruition. Different stages of the EIA process may also involve issues
of a scientific nature that may be subject to uncertainty. A precautionary
approach should ensure adequate assessment of environmental uncertainties
in a proposed undertaking and those environmental uncertainties should be
given appropriate consideration or weight in reaching the final decision.5
More importantly, in the context of environmental uncertainty and global
environmental change, a precautionary EIA is priceless for vulnerable states
such as SIDS.
The Mauritian regulatory framework for the prevention and control of pol-
lution provides for an EIA process, so that the environmental implications of
major activities are taken into account before being authorized. In 1991, the
Environment Protection Act6 (EPA) came into existence as a framework law
with a holistic approach to environmental protection, taking into
2 Mauritius has a total maritime zone of 2.3 million square km, with an exclusive eco-
nomic zone of 1.96 million square km and a continental shelf of 396,000 square km
co-managed with the Republic of the Seychelles. Mauritius is expected to make fur-
ther submissions for an extended continental shelf of 303,000 square km on the sea-
bed and subsoil to the Commission on the Limits of the Continental Shelf in respect of
Rodrigues and Chagos Archipelago. See the Board of Investment website, available
at: <http://www.investmauritius.com/investment-opportunities/ocean-economy.aspx>
(last accessed 21 February 2017). Seabed exploration for hydrocarbons and minerals is
on the agenda within the context of the development of an ocean economy for
Mauritius: ibid.
3 See UNESCO The Precautionary Principle (2005, World Commission on the Ethics of
Scientific Knowledge and Technology) at 7, available at <http://unesdoc.unesco.
org/images/0013/001395/139578e.pdf> (last accessed 21 February 2017).
4 W Gullett “The precautionary principle in Australia: Policy, law and potential precau-
tionary environment impact assessments” (2000) 11 Risk: Health, Safety and Environment
93 at 148.
5 Ibid.
6 Act 34 of 1991. The EPA (and its related regulations), together with any direction, order,
notice or requirement issued or imposed by the act, are the most important source of
environmental law in the country.
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
consideration integrated pollution control7 with an EIA mechanism.8 This

mechanism encompasses procedures that evaluate the environmental impli-
cations of activities before they are approved and enable better management
and monitoring of their effects at the implementation stage. The EIA process
is meant to examine activities that affect the environment, in order to avoid or
minimize anticipated environmental effects.9
In 2002, the EPA was amended10 to introduce additional types of impact
assessment procedure, namely the preliminary environment report (PER) for
undertakings with a lower environmental and socio-economic impact and
the strategic EIA (SEIA) for undertakings likely to have a greater impact.
While the SEIA was repealed in 2008, the requirement for a PER still applies
for specifically listed activities, with a simpler procedure than that applicable
for those activities requiring an EIA licence. The environment minister is com-
petent to grant an EIA licence and to approve a PER to ensure that environ-
mental impact is assessed for major undertakings listed in the fifth
schedule of the EPA. The ministry responsible for the environment (then
called the Ministry of Environment, Sustainable Development and Disaster
and Beach Management - MoE) drafted guidelines to assist proponents of
undertakings.11 While a project or activity listed in the fifth schedule of the
EPA cannot be carried out without an EIA licence or a PER, listed undertakings
may be classified as exempt undertakings, subject to faster procedures.
However the environment minister may require an EIA licence or a PER
with respect to unlisted undertakings.
More than two decades after the introduction of the EIA process in the
Mauritian environmental regulatory system, a number of questions arise
with respect to the effectiveness of the EIA process and practice. How far
does the local EIA mechanism include and prioritize precaution? Do impact
assessment legislation and policy minimize any negative impact on biodiver-
sity and environmental degradation in general?12 Are public involvement and
7 The traditional approach focused on the media that were polluted (air, water and land),
while an integrated approach to pollution control focuses on the pollutant and seeks to
reduce the effect that it may have on any and all environmental media. See J Thornton
and S Beckwith Environmental Law (1997, Sweet and Maxwell Textbook Series) at 116.
8 OJ Lim Tung Environmental Law in Mauritius (2015, International Encyclopaedia Series,
Wolter Kluwer Law), para 34.
9 Gullett “The precautionary principle”, above at note 4 at 116.
10 Act 19 of 2002.
11 “A proponent’s guide to EIA”, “EIA guidelines for proposed desalination plants”, EIA
guidelines for proposed stone crushing plants”, “EIA guideline for proposed residential
morcellement projects”, “EIA guideline for proposed coastal hotel projects” and “EIA
guidelines for fish farming in the sea”, all available at: <http://environment.govmu.
org/English/eia/Pages/Environmental-Impact-Assessment.aspx> (last accessed 21
February 2017).
12 See the Convention on Biological Diversity (CBD) EIA guidelines: Commission
for Environmental Assessment “Biodiversity assessment in EIA or SEA: Background
document to CBD decision VIII/28: Voluntary guidelines on biodiversity - inclusive
 J O U R N A L O F A F R I C A N L AW VOL , NO 
participation sufficient in relevant decision making in developmental pro-

jects? Does decision making take enough consideration of mitigation,
enhancement measures and alternatives? This article examines the
Mauritian EIA framework, and the advance and implementation of precaution
in the EIA process to strengthen the effectiveness of this assessment mechan-
ism. The article first provides an overview of the precautionary principle and
EIA. It then examines the implementation of precaution at the pre-approval
stage of the EIA process before dealing with precaution at the decision making
and post-approval stages.
THE PRECAUTIONARY PRINCIPLE AND EIA

Precaution is the leading policy approach that has emerged to guide environ-
mental decision makers confronted with inadequate information,13 especially
with respect to EIAs. Advancing precaution in environmental management
and decision making nevertheless often hinges on whether the precautionary
principle is a mandatory consideration for decision makers and proponents.
The precautionary principle

The precautionary principle emerged from concerns regarding treatment of
the environment14 in the 1970s in Germany. It has since been considered a
legal principle or an approach to guide decision makers in different coun-
tries15 and at the international level.16 The principle was adopted by the UN
contd
impact assessment” (April 2006), available at: <http://api.commissiemer.nl/docs/
os/bibliotheek/biodiversityeiasea.pdf> (last accessed 21 February 2017); UN Conference
on Environment and Development: Convention on Biological Diversity (5 June 1992,
entered into force 29 December 1993): UN doc UNEP/Bio.Div/N7-INC.S/4, reprinted in
31 International Legal Materials 818.
14 See the “Vorsorgeprinzip”: MM Compton “Applying World Trade Organization rules to
the labelling of genetically modified foods” (2003) 15 Pace International Law Review 359
at 377; K Steele “The precautionary principle: A new approach to public decision-
making” (2006) 5 Law, Probability and Risk 19 at 28.
15 See Canadian Law on the Protection of the Environment (LC 1999, chap 33), art 2(1)(a).
Art 5 of the French Environment Charter (Constitutional Law No 2005-205 of 1 March
2005, Journal Officiel de la République Française, No 0051 of 2 March 2005 at 3697) pro-
vides a definition of the precautionary principle. The precautionary principle is also
one of the main principles pertaining to environmental protection in the European
Union; see the consolidated versions of the Treaty on European Union and the Treaty
on the Functioning of the European Union (Official Journal C 326, 26 October 2012 at
1), art 191, para 2. N de Sadeleer (ed) Implementing the Precautionary Principle;
Approaches from the Nordic Countries, the European Union and United States (2007,
Earthscan).
16 This principle has become the underlying rationale for a large and increasing number of
international treaties and declarations in the fields of sustainable development, environ-
mental protection, health, trade and food safety. See UNESCO The Precautionary Principle,
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
General Assembly in 1982 and was reaffirmed in 1990 by European states in

the Bergen Ministerial Declaration on Sustainable Development.17 The precau-
tionary principle has been best known as principle 15 of the 1992 Rio de
Janeiro Declaration (Rio Declaration),18 which states that “in order to protect
the environment the precautionary approach shall be widely applied by
States according to their capabilities”. The declaration further lays down
that “where there are threats of serious or irreversible damage, lack of full sci-
entific certainty shall not be used as a reason for postponing appropriate mea-
sures to prevent environmental degradation”.19 This definition of the
precautionary principle is insufficiently precise for application purposes and
leaves the application of precaution to the discretion of states. The 1998
Wingspread Statement on the Precautionary Principle provides the following
definition: “[w]hen an activity raises threats of harm to human health or the
environment, precautionary measures should be taken even if some cause
and effect relationships are not fully established scientifically”.20 This state-
ment extends the application of the precautionary principle to harm to
human health and states that precautionary measures should be taken even
if there is scientific uncertainty.
In 2005, the UNESCO World Commission on the Ethics of Scientific
Knowledge and Technology adopted the following working definition of the
precautionary principle: “[w]hen human activities may lead to morally
unacceptable harm that is scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that harm by virtue of the precautionary
principle”.21 This working definition brings a moral dimension to the prin-
ciple without specifying the moral standards to be applied and may be left
to subjective interpretation in practice. While precaution is the leading policy
approach regarding environmental decision making with inadequate infor-
mation,22 the legal status of the precautionary principle in international law
is widely debated and it has not been incorporated in all domestic
contd
above at note 3 at 8; D Freestone and E Hey The Precautionary Principle and International
Law: The Challenge of Implementation (1996, Kluwer Law International). However, the prin-
ciple is considered vague and needs to be more precise: JE Hicker Jr and WR Vern
“Refining the precautionary principle in international environmental law” (1994–95)
14 Virginia Environmental Law Journal 424.
17 PW Birnie and A Boyle International Law and the Environment (2002, Oxford University
Press) at 116.
18 Rio Declaration on Environment and Development, UN Conference on Environment and
Development, 14 June 1992: UN doc A/CONF/151/5/Rev 1, 31 International Legal Materials
874.
19 Id, principle 15.
20 See: <http://www.newworldencyclopedia.org/entry/Precautionary_principle> (last accessed
21 February 2017).
21 See UNESCO The Precautionary Principle, above at note 3 at 14.
 J O U R N A L O F A F R I C A N L AW VOL , NO 
legislation.23 The nature of the concept of precaution is still being debated, in

particular as to whether it should be accepted as a legal principle in addition
to being a sound policy approach.24 Some have argued against the recognition
of precaution as a “principle” of environmental law, which would imply a
broad obligation to apply precaution in decision making, in favour of viewing
precaution as merely one particular policy or management “approach” to deal-
ing with uncertain threats.25 Although there is discussion about the meaning
of the expressions “principle” and “approach” concerning the precautionary
principle, in general “principle” is employed as the philosophical basis of
the precaution and “approach” as its practical application.26 At a domestic
level, if there is no specific legislation on the precautionary principle, it is
argued that a precautionary approach is the minimum rationale to be applied
in the interests of the environment and human health, thus constraining
activities of the public.
The precautionary principle and EIA in Mauritius

At the international level, Mauritius does recognize the precautionary prin-
ciple in bilateral and multilateral treaties27 to which it is a party, and even
23 For the value of the precautionary principle, see Birnie and Boyle International Law, above
at note 17 at 118–19. In the international context, it is frequently argued that declara-
tions of principles are not traditional sources of international law and are not binding
on the member states of the organization that adopted them. Declarations of principles
are “recommendations” without binding force. See UNESCO The Precautionary Principle,
above at note 3 at 22. See also international case law regarding the value of the
precautionary principle: Argentina v Uruguay ICJ [2010] (Pulp Mills in the River
Uruguay); EC - Measures Concerning Meat and Meat Products (Hormones) [1998]
WT/DS26-48/AB/R; EC - Measures Affecting Asbestos-Containing Products [2001]
WT/D135/AB/R. Also Y Cho “Precautionary principle in the International Tribunal for
the Law of the Sea” (2009) 10 Sustainable Development Law and Policy 1.
24 International Union for Conservation of Nature “Guidelines for applying the precau-
tionary principle to biodiversity conservation and natural resource management”
(May 2007) at 1, available at <http://cmsdata.iucn.org/downloads/ln250507_
ppguidelines.pdf> (last accessed 21 February 2017); Birnie and Boyle International
Law, above at note 17 at 116.
25 Ibid.
26 See UNESCO The Precautionary Principle, above at note 3 at 22–23.
27 Mauritius acknowledges the importance of sustainable management consistent with the
precautionary principle in the preamble of the bilateral Treaty Concerning the Joint
Management of the Continental Shelf in the Mascarene Plateau Region Between the
Government of the Republic of Seychelles and the Government of the Republic of
Mauritius (concluded on 13 March 2012) UN Treaty Series 2847, available at: <https://
treaties.un.org/Pages/showDetails.aspx?objid=0800000280331cc0> (last accessed 21
February 2017). See treaties to which Mauritius is a party, including the preambles of
the CBD (ratified on 17 August 1992) and the Cartagena Protocol on Transboundary
Movements of Living Modified Organisms (officially titled the Cartagena Protocol on
Biosafety to the Convention on Biological Diversity, 29 January 2000, entered into
force 11 September 2003) 39 International Legal Materials 1257 (adopted on 29 January
2000 and ratified by Mauritius on 9 September 2001); UN Framework Convention on
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
invokes the precautionary principle to prohibit ships with radioactive cargo

from entering its territorial waters.28 However, the precautionary principle
does not have statutory value in Mauritius and it mainly serves as a guiding
principle in environmental decision making.29 Although environment related
policies are not a source of law per se, they can be said to have inspired envir-
onmental regulation to some extent in the country.30 National environmental
policies and strategies are said to have adopted approaches that are based on
the precautionary principle, the prevention principle and the “polluter pays”
principle.31 The 2013 Maurice Ile Durable (MID) Policy, Action Plan and
Strategy32 goes a step further than former policies and strategies by specifying
its understanding of these principles as guiding principles. As a MID guiding
principle, the precautionary principle is defined in accordance with principle
15 of the Rio Declaration, which states that “in the case of credible threats of
serious or irreversible damage, a lack of full scientific certainty shall not be
used as a justification to postpone cost-effective measures to prevent impacts
or to condone activities that exacerbate a problem”. MID guiding principles
also include a science-based governance through the use of best science and
data for effective and informed decision making.33 The rationale of the precau-
tionary principle as an overarching guiding principle in Mauritius requires
that public policy includes measures to avoid or reduce unacceptable norms
that may result from human activities.34
An EIA procedure of modelling an activity before its approval is an import-
ant vehicle by which precaution can be implemented in an environmental
regulatory system. As a contracting party to the Convention on Biological
contd
Climate Change, 1 International Legal Materials 851 (adopted on 9 May 1992 and ratified by
Mauritius on 17 August 1992), art 3.33; UN Convention on the Law of the Sea, 21
International Legal Materials 1261 (adopted on 10 December 1982 and ratified by
Mauritius on 4 November 1994), art 206.
28 B Sage-Fuller The Precautionary Principle in Marine Environmental Law: With Special Reference
to High-Risk Vessels (2013, Routledge) at 52.
29 Neither the Constitution of the Republic of Mauritius (RL 1/1, 12 March 1968) nor
national legislation includes any provisions on the precautionary principle.
30 Lim Tung Environmental Law in Mauritius, above at note 8, para 31.
31 See Republic of Mauritius “Maurice Ile Durable policy strategy and action plan: Final
report” (2013) at v, available at <http://mid.govmu.org/portal/sites/mid/file/full%
20report%20midpolicy.pdf> (last accessed 21 February 2017); and Republic of
Mauritius “National biodiversity strategy and action plan 2006–2015” (2006) at 2, avail-
able at: <https://www.cbd.int/doc/world/mu/mu-nbsap-01-en.pdf> (last accessed 21
February 2017).
32 See Republic of Mauritius “Maurice Ile Durable”, above at note 31. In 2008, the MID con-
cept was announced by the government as the new long-term vision to make Mauritius a
world model for achieving sustainable development, particularly for SIDS: Lim Tung
Environmental Law in Mauritius, above at note 8, para 35.
33 MID guiding principles also recognize traditional and indigenous knowledge: id, para
42.
34 Steele “The precautionary principle”, above at note 14 at 19.
 J O U R N A L O F A F R I C A N L AW VOL , NO 
Diversity (CBD), Mauritius is required to introduce appropriate procedures

requiring EIA for proposed projects that are likely to have significant adverse
effects on biological diversity, in order to avoid or minimize those effects.35
Consequently, projects are required to be assessed in relation to feasible alter-
natives and all potential findings should be acknowledged in an EIA report.
Precaution must be applied concerning development proposals with an uncer-
tain environmental impact and possible types of scientific uncertainty should
be reflected in the EIA report. Potential harm or damage to current genera-
tions, or public goods and harm to future generations resulting from activities
must be identified and prevented.36 Responsibility to establish that the pro-
posed activity will not (or is very unlikely to) result in significant harm lies
with the proponent of the activity. Reversing the burden of proof for the pro-
ponent of the proposed activity to prove no significant harm would also be a
precautionary measure, reflecting the idea of the “polluter pays”.37
Mauritian case law did not examine the precautionary principle until a 2011
case regarding the rejection of an EIA application to build a coal-fired power
plant on the basis of the precautionary principle.38 In this case, MoE represen-
tatives argued that the precautionary principle is inherent to all applications
for an EIA licence.39 While the precautionary principle is generally under-
stood to mean that one should proceed cautiously where there is reason to
believe harm may result from a proposed activity, there remains considerable
doubt and disagreement about its actual content or meaning.40 In this case,
the then Environment Appeal Tribunal41 (EAT) acknowledged that the prin-
ciple had not been incorporated into domestic law but was a sound approach
for considering the concept of environmental stewardship.42 The EAT sup-
ported its understanding of the application of the precautionary principle
through its application by foreign courts.43 The Australian New South Wales
35 The CBD also allows for public participation in such procedures: CBD, art 14. See
Commission for Environmental Assessment “Biodiversity assessment”, above at note 12.
36 Steele “The precautionary principle”, above at note 14 at 20.
37 Ibid.
38 MoE representatives invoked the unsuitability of the site as well as adverse impact on
residential areas and negative impact on the health of neighbouring inhabitants. See
The (Mauritius) CT Power Ltd v The Ministry of Environment and Sustainable Development
cause no 02/2011 [2012] Environmental Appeal Tribunal.
39 Id at 41.
41 The first EAT that was provided under the EPA was replaced by the Environment and
Land Use Appeal Tribunal (ELUAT), set up under the ELUAT Act 5 of 2012 and with a
wider jurisdiction than the EAT.
42 According to the principle of stewardship, “every person in Mauritius shall use his best
endeavours to preserve and enhance the quality of life by caring responsibly for the nat-
ural environment of Mauritius”: EPA, sec 2.
43 See Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133, a decision of the
Australian New South Wales Land and Environment Court delivered by Preston CJ on 24
April 2006; Hutchison Telecommunications (Australia) Pty Limited v Baulkham Hills Shire
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
Land and Environment Court held that the principle would apply when two
prior conditions exist: a threat of serious or irreversible damage; and a lack
of scientific uncertainty44 as to the extent of possible damage. The application
of the precautionary principle and the need to take precautionary measures
are triggered when these two prior conditions are satisfied.45 These two condi-
tions are cumulative and, once they are present, a precautionary and propor-
tionate measure may be taken to avert the anticipated threat of environmental
damage.46 When these two conditions are present, the burden of proof shifts
to the proponent to show that the threat of environmental damage is negli-
gible. The New South Wales court also held that the precautionary principle
is not to be used to avoid all risks. The principle does not apply in the case
of a threat of negligible environmental damage.47 There is a responsibility
to protect the public from exposure to harm when scientific investigation
has found a plausible risk, and this can only be relaxed if further scientific
findings provide evidence that no harm will result.48 The presiding magistrate
of the EAT stated in the CT Power case that, by virtue of the precautionary prin-
ciple, activities are not permitted until uncertainties regarding the identified
impact are sufficiently low that a decision may be made.49 He considered that
the precautionary principle could not be applied in this case since there was
no scientific uncertainty regarding the effect of coal burning and its likely
damage to the environment in other countries as well as in Mauritius.50 The
EAT concluded that an EIA licence should be granted, subject to conditions
to address the identified impact after a careful balancing of the different inter-
ests at stake.51
In the absence of a statute-based precautionary principle but with a weak
formulation of this principle in environmental policies in Mauritius, the pre-
cautionary approach is the minimum rationale to be applied in the interests
of the environment to constrain activities of the public and of independent
actors. It is argued that a strong precautionary approach at earlier stages (pre-
approval and approval) of the EIA process will require fewer precautionary
measures at later stages.
contd
Council [2004] NSWLEC 104 (26 March 2004); Monsanto Agricoltura Italia v Presidenza del
Consiglio dei Ministri European Court of Justice case C-236/0 [13 March 2003].
44 The lack of scientific uncertainty is assessed in relation to the nature and scope of the
threat of environmental damage. See CT Power, above at note 38 at 44.
45 Id at 42.
46 Ibid.
47 The threat of environmental damage must be adequately sustained by scientific
evidence, as held in Monsanto Agricoltura Italia, above at note 43, para 138.
48 See CT Power, above at note 38 at 46.
49 Id at 41.
50 Id at 48.
51 The proponent must also address issues such as noise, odour, light and dust in relation
to the proposed power plant, in accordance with the supplementary EIA commissioned
by the Department of the Environment: id at 77–78.
 J O U R N A L O F A F R I C A N L AW VOL , NO 
PRECAUTIONARY APPROACH AT PRE-APPROVAL STAGE OF THE

EIA PROCESS
Before 1993, development projects in Mauritius were mainly assessed on
grounds of technical and economic feasibility, with their potential environ-
mental, social and health impact rarely examined rigorously. Consequently
many activities approved before 1993 became operational without an EIA.52
In 1993, impact assessments became mandatory for listed undertakings, to
avoid activities with a significant adverse impact on the environment and soci-
ety.53 The EPA provides a standard procedure for an EIA or PER to be submit-
ted to the MoE. The Environment Assessment Division has a major role in the
control of developmental works and in ensuring that environmental impact is
adequately addressed in the EIA process.54 The following paragraphs discuss a
better precautionary approach to the EIA process, with respect to the scope of
undertakings requiring an EIA, the screening requirements of a proposed
undertaking and the use of mitigation measures and alternatives. It is argued
that a precautionary approach also includes the avoidance of adverse impact
and informed decision making through better public participation.
Review of the scope of undertakings requiring an EIA

Initially, only major development project activities required an EIA. Additional
forms of impact assessment, such as the PER and SEIA, were introduced in
2002. It is necessary to review the listed undertakings requiring an EIA and
the requirement for an SEIA, since an SEIA has not been required for any
undertaking since 2008.
Review of listed undertakings

An activity or project other than an undertaking does not require a PER or EIA
licence. Listed undertakings require an EIA or a PER, while unlisted undertak-
ings55 may require an EIA or PER at the discretion of the environment
minister.
52 Including, for example, sugar factories, textile manufacturing factories and major hotels
in the coastal zone.
53 An average of 125 EIA licences per year were issued from 1993 to 2002: T Ramjeawon and
R Beedassy “Evaluation of the EIA system on the island of Mauritius and development of
an environmental monitoring plan framework” (2004) 24/5 Environmental Impact
Assessment Review 537 at 537. A total of 75 EIA licences were issued in 2003, compared
with 26 in 2012. See Digest of Environmental Statistics 2012 (2013, Ministry of Finance
and Economic Development) at 91.
54 It also attends to appeals made by proponents against decisions regarding an EIA or PER
application at the Environment and Land Use Appeal Tribunal, as well as cases related to
EIAs at the Supreme Court or other courts.
55 Undertakings which are not listed in the fifth schedule of the EPA that are likely, by vir-
tue of their nature, scope, scale and sensitive location, to have an impact on the envir-
onment or on the zoning of an area: EPA, sec 17(1).
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
Undertakings that require an EIA licence are listed in part B of the fifth
schedule of the EPA.56 Section 18 of the EPA lists the requirements for an
EIA licence. An assessment of the possible social, economic and cultural effects
of the undertaking is also required.57 The Environment Assessment Division
uses EIA guidelines as well as sectoral checklists to review EIAs in different sec-
tors.58 For undertakings to be operated on the island of Rodrigues,59 all proce-
dures for an EIA licence must be carried out in accordance with the EIA
procedures on the main island of the Republic of Mauritius (mainland
Mauritius). The Rodrigues Regional Assembly may, after consultation with
the Rodrigues Environment Committee, make regulations applicable to
Rodrigues for categories of undertakings, projects or activities which need
an EIA licence.60 The island’s chief executive assists in reviewing an application
for an EIA licence regarding a proposed undertaking in Rodrigues.61 While the
EIA mechanism applies to other dependencies62 of Mauritius, to date no EIA
has been carried out in any dependency other than Rodrigues.
A PER is required for activities on a lesser scale, as per part A of the fifth
schedule of the EPA, in accordance with relevant policy or environmental
guidance that is published in respect of an undertaking.63 Undertakings need-
ing a PER are generally considered to have fewer consequences for the
56 For instance, undertakings concerning the assembly of motor vehicles, block making
plant manufacturing over 10,000 blocks per day, bulk processing, storage and handling
of petroleum products, liquefied gas, coal and petro-chemical products, hospitals, con-
struction of marinas, conversion of forest land to any other land use, housing projects
and apartment complexes over 50 units within 1 km of the high water mark.
57 EPA, sec 18(2)(g). For instance, the EIA guidelines for fish farming in the sea include a
social impact assessment. Fish farms should be developed and operated in a socially
responsible manner, benefiting the farm, local communities and the country. See
“Guidelines and annexes for application for authorisation for fish farming in the sea”
(2008), available at: <http://www.investmauritius.com/media/32978/Guidelines-for-
application-for-authorisation-for-fish-farming-in-the-sea.pdf> (last accessed 21 February
2017).
58 See the MoE website, above at note 11.
59 It is situated in the Indian Ocean, 2,000 km from the south-east coast of the African con-
tinent, with an area of 1,865 square km without its dependencies: Lim Tung
Environmental Law in Mauritius, above at note 8, para 2.
60 EPA, sec 92(1).
61 Id, sec 91(2)(d).
62 Until 8 November 1965, the most important dependencies of Mauritius were Rodrigues,
situated 650 km to the north-east of Mauritius, and other islands: Agaléga, 1,000 km to
the north and Cargados Carajos (Saint Brandon), 450 km to the north-east of
Mauritius. The Chagos Archipelago is located about 2,000 km to the north-east of
Mauritius and is subject to a territorial dispute between the United Kingdom and
Mauritius. Tromelin, situated 500 km to the north-west of Mauritius, has been claimed
as a dependency by Mauritius, France and also Madagascar. See Lim Tung
Environmental Law in Mauritius, above at note 8, paras 2–7.
63 For instance, a PER application must be made in respect of coral crushing and process-
ing, the creation of bathing areas by mechanical means, depots for 50 or more buses,
food processing industries, industrial-scale laundry and dry-cleaning within 1 km of
 J O U R N A L O F A F R I C A N L AW VOL , NO 
receiving environment, human health and property.64 A PER application is

required to conform with policies or relevant environmental guidance and
PER guidelines provided by the MoE.65 Undertakings concerning Rodrigues
that require a PER must apply in accordance to the procedures provided for
mainland Mauritius.66
Unlisted activities and projects that are not specified as an undertaking in
the fifth schedule of the EPA do not automatically need to fulfil the require-
ments for an EIA or PER.67 However, the proponent of such an activity may
be required to submit an application for a PER or for an EIA licence at the dis-
cretion of the environment minister.68 Legislation was enacted in 2006 to pro-
mote investment, by enabling businesses to start operations within three
working days of applying for a business permit, based on self-adherence to
guidelines with ex post control.69 However this fast-track procedure may not
promote a precautionary approach regarding environmental protection.
Furthermore, in the light of the conversion of agricultural land for develop-
ment purposes, faster procedures were also adopted from 2011 with respect to
EIA licence applications for persons registered under the Land Productivity
Enhancement Scheme (LPES).70 Under the Planning and Development Act
(PDA), the LPES Technical Committee reviews applications for an EIA licence
with respect to projects under the scope of the LPES.71 Any person wishing
to benefit from facilities available under the LPES relating to land use develop-
ment is required to register under the LPES.72
Since 1993, the threshold for triggering the EIA process in Mauritius has
been the significance of the environmental impact of development projects,
contd
the high water mark, land reclamation and backfilling, paint manufacture, and the
mechanical removal of marine flora.
65 See the “Proponent’s guide to preliminary environmental report (PER)”, “PER guidelines
for night clubs” and “Guidelines for rearing of poultry above 5000 heads”, available at:
<http://environment.govmu.org/English/eia/Pages/Environmental-Impact-Assessment.
aspx> (last accessed 21 February 2017).
67 EPA, sec 17.
68 For instance if the unlisted activity may have an impact on the environment or on the
zoning of an area: id, sec 17(1).
69 Lim Tung Environmental Law in Mauritius, above at note 8, para 117. Environmental and
health and safety guidelines apply to selected activities with a view to protecting the
environment, public health and workplace safety.
70 This faster procedure is also used for applications for other permits and authorization:
id, para 99. The LPES was set up to ensure that land available for creating economic value
is fully utilized and optimally exploited.
71 Act 32 of 2004, sec 40D(2).
72 The supervising officer of the ministry responsible for land use planning and develop-
ment is competent to consider any application for registration under the LPES: id sec
40(F). The LPES Technical Committee reports to a ministerial committee established
by the prime minister.
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
although this may be a subjective threshold. It may also not encompass pro-
jects where there is uncertainty regarding the environmental impact, espe-
cially where insufficient information is available concerning non-negligible
environmental harm. It is recommended that the EIA requirement be trig-
gered for proposed projects or activities where there is uncertainty regarding
the environmental impact.73
In order to remedy the subjectivity of the threshold of significant environ-
mental impact for the EIA process to be triggered, the following options are
proposed. First, a catch-all category is needed for undertakings requiring an
EIA by virtue of size, location or nature. The current categorization of under-
takings may miss proposed projects that do not fall within existing EIA cat-
egories.74 Secondly, activities and projects that are not listed but need to be
notified and recorded by the director of the Department of Environment
(DDoE) should be identified. Thirdly, coastal developments involving hotel
development should require an EIA whatever their size, while it should be
compulsory for development to be set back more than 200 metres in environ-
mentally sensitive areas.75
At best, the use of a risk based approach would be preferable to determine if
activities need an EIA based on their nature, size, location and impact, instead
of categories based on the listing and size of undertakings. Using an environ-
mental risk based approach early in the EIA process would help to ensure that
any key impact is identified right at the start and may be examined in more
detail later in the EIA process. An environmental risk based approach would
involve better precaution and improve the level of information and knowl-
edge regarding risks during the EIA process.
Necessity for a strategic EIA

While an EIA essentially reacts to proposed developments and their environ-
mental impact, an SEIA can be more proactive by facilitating earlier consider-
ation of environmental impact and the examination of a wider range of
73 Gullett “The precautionary principle”, above at note 4 at 148–49.

74 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 544. For
instance, offshore drilling for oil and seabed exploration for hydrocarbons and minerals
do not fall within existing categories requiring a PER or an EIA licence.
75 Such as wetlands and the coastal zone area known as the Pas Géométriques. The breadth
of the Pas Géométriques is reckoned from the line of the seashore reached by high water
at spring tide and can never be less than 81.21 metres. Its boundary line is parallel to the
lines of the coast considered as a whole and without regard to minor irregularities: Pas
Géométriques Act (Revised Laws of Mauritius 4/21 of 1982), sec 3(1). Annexes of the Pas
Géométriques include the sea water pools, salt water marshes, lakes, bogs and basins
situated wholly or partly within the Pas Géométriques, the islets adjacent to the shore
that can be reached on foot at low tide, the creeks at the mouths of rivers, and the
river mouths themselves: id, sec 2. See Moothoo v Osprey Co Ltd [2004] SCJ 308, regarding
construction projects near or on the Pas Géométriques. Developmental works in an area
close to a protected area require a Cultural Heritage Impact Assessment Licence and,
since June 2014, clearance from the National Ramsar Committee.
 J O U R N A L O F A F R I C A N L AW VOL , NO 
potential alternatives and mitigation measures.76 The SEIA is often referred to

as a “sustainability-led” process, better suited to the consideration of cumula-
tive impact at a landscape rather than site-specific scale.77 There are also volun-
tary CBD guidelines for incorporating biodiversity related issues into EIA
legislation and / or processes and into strategic environment assessment,
which can help provide a better framework for the SEIA.78
A form of SEIA was introduced in 2002 as a process to identify and address
the environmental and socio-economic consequences of policies, plans and
programmes prior to decision making.79 An SEIA was required for major pol-
icies with strategic importance for Mauritius and Rodrigues.80 The DDoE was
competent to classify a project or undertaking within the EIA / SEIA categories
but was not authorized to declassify an activity from the SEIA category. Since
its introduction in Mauritius, an SEIA has been conducted in only two
instances: for the identification of potential sites for marinas, water-ski lanes
and bathing areas,81 and for the Multi-Annual Adaptation Strategy of the
sugar cane sector.82 The Environment Protection (Amendment) Act 6 of
76 See C Wood Environmental Impact Assessment: A Comparative Review (2nd ed, 2003, Prentice
Hall) at 333.
77 See J Glazewski Environmental Law in South Africa (2nd ed, 2005, Butterworths) at 232.
78 See Commission for Environmental Assessment “Biodiversity assessment”, above at note
12.
79 Undertakings requiring an SEIA were listed in the first schedule of the EPA. See O Bina “A
critical review of the dominant lines of argumentation on the need for strategic assess-
ment” (2007) 27 Environment Impact Assessment Review 585 at 587.
80 Such as housing development programmes, integrated coastal zone management plans,
industrial estates, national physical development plans, outline schemes, new towns or
satellite towns, port master plans, sewerage master plans, solid waste management plans
as well as tourism development plans for Mauritius and Rodrigues. See part C of the for-
mer first schedule of the EPA before it was repealed in 2008.
81 See Mega Design Ltd of Mauritius (civil engineers), in association with Entech Consultants
(Pty) Ltd (coastal engineers) and WSP Walmsley (Pty) Ltd (environmental scientists)
“Strategic EIA on the identification of potential sites for marinas, water-ski lanes and bathing
areas: Final Technical Report - Executive summary”, available at: <http://apps.unep.
org/publications/pmtdocuments/-Strategic%20EIA%20for%20Identification%20of%
20Potential%20Sites%20for%20Marinas,%20Ski%20Lanes%20and%20Bathing%20Areas%20
for%20Mauritius%20-%20Final%20Technical%20ReportEXECUTIVE%20SUMMARY%20SEI.
pdf> (last accessed 21 February 2017).
82 See J Palerm, J Ousik and K Deepchand “Mauritius: Strategic environmental assessment
on the sugar cane sector” in Organisation for Economic and Cooperation Development
Strategic Environmental Assessment in Development Practice: A Review of Recent Experience
(2012, OECD Publishing) 53. The sugar industry has made a significant contribution to
the development of the Mauritian economy, but may have an impact on the environ-
ment if inadequately managed; the strategic environment assessment of the multi
annual adaptation strategy for the reform of the sugar sector (MAAS) highlights the
environmental impact of land use change and proposes mitigation measures to minim-
ize sugar sector reform. Policy instruments that had an impact on land use in mainland
Mauritius include MAAS 2006–15, which was devised in view of a sugar sector reform
plan in the context of the phasing out of the preferential treatment guaranteed by
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
2008 repealed the SEIA, although strategic impact assessment in the EIA pro-
cess would help provide the appropriate framework for project specific assess-
ments to be conducted. It is strongly recommended that local projects with a
serious impact, such as the development of “smart cities” across mainland
Mauritius, be subject to an SEIA.83 Currently, the development of a “smart
city” requires an EIA in accordance with guidelines drafted by the Board of
Investment (BOI) for interested developers.84
EIAs need to be conducted more widely to encompass an SEIA (with a pre-
cautionary approach), since there may be numerous causes of environmental
harm. Such causes may be interrelated while spatially and / or temporally dis-
tant from their effects.85 It has been argued that the local EIA process should
include the requirement for an SEIA86 for policies, plans and programmes, as
well as high level projects in the EPA, for the following reasons. First, issues
related to the cumulative effect of different projects, greenhouse policies
and sustainable development are considered to be better addressed at the
SEIA level, since the inter-temporal nature of their impact is difficult to com-
prehend within the EIA of a single project.87 Secondly, an SEIA would be neces-
sary regarding environmental assessment policies and guidelines to address
the impact of developmental works or projects on vulnerable environmental
assets or areas. Such planning guidelines are of utmost importance, since
coastal development projects have a serious impact on an already pressurized
coastal zone. Thirdly, transboundary impact is not currently assessed under
the current EIA process and a wider range impact assessment, preferably an
contd
the European Community on sugar prices. See Lim Tung Environmental Law in Mauritius,
above at note 8, para 265.
83 There are also five projects covering approximately 2,400 hectares as indicated in the
editorial to the 2015–16 national budget; see: <http://www.investmauritius.com/
budget2015/Editorial.aspx> (last accessed 21 February 2017). See Lim Tung, id, para 392.
84 BOI “Smart city scheme guidelines” (June 2015), available at: <http://www.
investmauritius.com/media/300689/smart-city-scheme-guidelines.pdf> (last accessed 21
February 2017). The Smart City Scheme was set up under the Investment Promotion
Act (Smart City Scheme) Regulations GN 128 of 2015, with more detailed requirements
for companies that intend to develop a project under the Smart City Scheme; see id at 14.
To obtain a Smart City Scheme certificate, the proponent has to provide, inter alia, a
social impact assessment report providing an appraisal of the impact on the day to
day quality of life of the immediate communities whose environment will be affected
by the proposed project. The EIA application must include the surrounding environ-
ment indicating adjacent residential / built-up areas, environmentally sensitive areas,
watercourses and designated sites of interest.
86 See CBD, art 14(1)(b).
87 See Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 542. See
VK Jogoo “EIA of the proposed Midlands Dam Project: Mauritius case study 27” UNEP EIA
Training Resource Manual, Case Studies from Developing Countries 261 at 266, available at:
<http://www.unep.ch/etu/publications/36)%20261%20to%20267.pdf> (last accessed 21
February 2017).
 J O U R N A L O F A F R I C A N L AW VOL , NO 
SEIA, would suit the assessment of transboundary impact better. Although

Mauritius is a SIDS sharing no physical borders with any other country, it
needs to consider shared marine / international waters and the impact of
its activities on these waters.88 Recent discoveries of oil and natural gas by
deep water drilling in Mauritian territories in the western Indian Ocean region
have not yet been confirmed.89 Should these discoveries be confirmed, it is
strongly recommended that the exploitation of oil and natural gas in these
territories be subject to an SEIA including an assessment of transboundary
impact.
An improved SEIA is necessary, taking into consideration these recommen-
dations and voluntary CBD guidelines incorporating biodiversity related
issues.
Basic screening and scoping requirements

Screening and scoping are part of the Mauritian EIA mechanism and are car-
ried out at the early stages of a project. However, they do not trigger the
requirement for an EIA or a PER since the categories of undertakings needing
an EIA or a PER are already listed in the fifth schedule of the EPA.
Applicable procedures for basic screening and scoping in the EIA process are
as follows. At least three months before submitting the application for an EIA
licence, the proponent of an undertaking must inform the DDoE regarding
the proposed undertaking, with an outline and details regarding its location,
nature and scope. A copy of the document is sent to ministries involved in
assessing the undertaking and a site visit is then effected by the MoE, the
EIA Committee, the respective consultants for the EIA report and the propon-
ent of the undertaking. Legislation needs to specify qualification criteria for
the selection of EIA consultants,90 since there are no clear criteria for the regis-
tration of consultants eligible to prepare EIA reports.91 The DDoE may impose
the terms of reference for an EIA report, the fields of study to be covered, and
the consultants’ expertise and qualifications.92 However, there are capacity
constraints, to the extent that there is a lack of technical experts to undertake
88 For instance as a signatory to the Convention for the Protection, Management and
Development of the Marine and Coastal Environment of the Eastern African Region
(21 June 1988), available at: <http://www.unep.org/nairobiconvention/> (last accessed
21 February 2017); “South African Developing Countries (SADC) environmental legisla-
tion handbook” (2012) at 220, available at: <http://www.saiea.com/dbsa_handbook_
update2012/dbsaFrameSet.html> (last accessed 21 February 2017).
89 World Wildlife Fund “Oil and gas developments in the western Indian Ocean region”
(policy brief on the environmental and social aspects of recent oil and gas discoveries
in the western Indian Ocean, 2012); Lim Tung Environmental Law in Mauritius, above at
note 8, para 264.
90 A list of EIA consultants is available on the MoE website, available at: <http://
environment.govmu.org/English/eia/Documents/Reports/eiaconsultants11.pdf> (last
accessed 21 February 2017).
91 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 542.
92 EPA, sec 15(4).
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
EIA studies.93 One way of overcoming capacity constraints may be to introduce

a certification scheme and training for environmental assessment practi-
tioners in the country.94
Screening and scoping are considered to be critical stages in the EIA process,
in line with the CBD guidelines on a biodiversity inclusive EIA to determine
any significant impact and issues to be studied early in the project cycle.
Better precaution would imply having minimum scoping requirements for
an EIA to help proponents prepare terms of references for impact studies to
achieve a better quality of EIA reports.95 Recommendations could then be
included in the design and cost benefit analysis without causing major delays
or increased design costs. Further, basic scoping requirements should also be
required for the preparation of a PER application. A strong precautionary
approach at the screening and scoping stages reduces the need for a precau-
tionary approach and measures at later stages. While there are sectoral guide-
lines for some undertakings, it is argued that minimum scoping requirements
for all undertakings requiring impact assessment are necessary in the EIA
mechanism, to ensure uniformity in the contents of EIA and PER reports.96
93 EIA technical experts need field experience and multidisciplinary skills, as well as a good
foundation in environmental science. See RA Payet “A review of environment impact
assessment and sustainable development in small island developing states” in C
Vigilance and JL Roberts Tools for Mainstreaming Sustainable Development in Small States
(2011, Commonwealth Secretariat) 205 at 214–15.
94 Certification can be based on a combination of tertiary qualifications, core EIA compe-
tencies, demonstrated EIA experience and a commitment to ongoing professional devel-
opment. At the South African Developing Countries level, South Africa, Botswana and
Tanzania have a statutory requirement for environmental assessment practitioners to
be certified, while Lesotho and Namibia have taken steps towards a certification scheme.
The certification scheme for environmental assessment practitioners ensures that there
is a required level of professional quality and conduct through a rigorous set of qualify-
ing criteria and the threat of disciplinary action if the code of conduct is breached. See
“SADC environmental legislation handbook”, above at note 88 at 16.
95 Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 541–42.
96 See sectoral guidelines on the content of an EIA, available at the MoE website, above at
note 11. “Sectoral guideline on the content of PER” (for the food processing industry,
excluding small and medium enterprises, the rearing of over 5,000 head of poultry,
nightclubs, the rearing of more than 20 head of cattle, 50 head of goats and 50 head
of sheep); see MoE “Environmental guidelines”, available at: <http://environment.
govmu.org/English/legislations/Pages/Environmental-Guidelines.aspx> (last accessed
21 February 2017). In the proposed Midlands Dam project, the EIA process and scoping
exercise proved inadequate for dealing with broader management issues: Jogoo “EIA of
the proposed Midlands Dam project”, above at note 87 at 266. Some environmental
guidelines have been drafted for non-scheduled undertakings, including rearing
under 5,000 head of poultry, assembling batteries, bakeries, residential care homes,
undersea walks, nautical centres, and soap and detergent manufacturing; see MoE
“Environmental guidelines”, ibid.
 J O U R N A L O F A F R I C A N L AW VOL , NO 
Exempt undertakings
Exempt undertakings are listed undertakings for which the normal EIA / PER
application procedures are not applicable, in view of their urgency for the
national or economic development of Mauritius.97 Such an undertaking still
needs to submit an application for an EIA licence to the DDoE who may
refer it to the EIA Committee for comments or recommendations. The com-
mittee may then refer the application with relevant comments to the environ-
ment minister for decision making purposes.98 The application for an EIA
licence regarding an exempt undertaking is not subject to the public inspec-
tion stage, although the DDoE may request comments from public depart-
ments, any enforcing agency or non-governmental organization (NGO). The
EIA report for the exempt undertaking is then referred to the EIA
Committee with any comments received.99 Where the environment minister
has approved an EIA report regarding an exempt undertaking, the DDoE is
required to cause a notice to be published in the Government Gazette and in
two daily newspapers.100
While it is understandable that some developmental projects may be urgent
in the national or economic interest, it is argued that a precautionary
approach is needed for exempt undertakings, since governmental authorities
seem to prioritize economic interests. For instance, the extension of the Mare
Chicose landfill project by the ministry responsible for local government mat-
ters was approved as an exempt undertaking,101 although the operation of this
landfill was controversial when its extension was approved.102 Given the tech-
nical specificities of different undertakings, an independent multidisciplinary
committee would be required to carry out the exercise of balancing interests
in respect of these unlisted activities.
97 EPA, sec 28.

98 This could be termed a fast-track procedure for the application for an EIA licence.
99 EPA, sec 28(2).
100 Id, sec 28(5). The notice must include a summary description of the undertaking and its
location, the proponent of the undertaking, a declaration that the undertaking is an
exempt undertaking, and EIA approval and the conditions attached to its approval.
101 The construction and subsequent operation of cell 7 over 14.5 hectares were approved as
an exempt undertaking in 2013 and July 2014 respectively. See MoE “Decisions on EIA
applications”, available at <http://environment.govmu.org/English/eia/Pages/Decision-
on-EIA-Applications.aspx> (last accessed 21 February 2017). There were numerous com-
plaints by the inhabitants of Mare Chicose regarding health and pollution impact.
Lim Tung Environmental Law in Mauritius, above at note 8, para 116.
102 In 2013, fire-fighters took three days to control an accidental fire that caused acute air
pollution in the neighbourhood. Yet the construction of sub cell 7 was approved in
January 2014 as an exempt undertaking, and a contingency plan for any accident or
failure of equipment was said to have been submitted to the DDoE before it became
operational. Lim Tung Environmental Law in Mauritius, ibid.
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
Public participation at pre-approval stage of the EIA process

EIA is meant as a predictive tool at the early planning stages of development
projects, so that the government and the community can form a view about a
proposal’s environmental acceptability. It is argued that effective public par-
ticipation (through community or stakeholder input) is part of a precaution-
ary approach to avoid the adverse socio-economic and environmental impact
of a proposed undertaking and to ensure informed decision-making.
Precautionary consultation is necessary to present decision-makers with an
accurate representation of all relevant value positions. The proponent of a pro-
posed undertaking needs to address key issues raised by the public in the EIA
public inspection process. The local EIA mechanism provides procedures for
public inspection for an EIA, although public inspection for a PER application
is not compulsory.
After the application for an EIA licence has been submitted to the DDoE, it
must be made available for public inspection during working hours at the
Department of the Environment (DoE) office.103 No later than 14 days after
such an application has been submitted, the DDoE is required to give notice
of public inspection with a summary of the EIA application in the
Government Gazette and in two consecutive issues of two daily newspapers.104
Public inspection with respect to an EIA licence application is required not
less than ten days but not more than 21 days after the date of publication
in the Government Gazette.105 The DDoE may decide to extend the time limit
for the submission of public comments on an EIA licence application except
in the case of an application submitted by the BOI.106 He or she also has the
discretion to decide whether an EIA will be published or an extract of the
EIA will be posted on the internet for public inspection.107 However, when
extracts of EIA reports are submitted for public comment and posted on the
internet, they only consist of a table of contents of the reports.108 The actual
chapters of the reports are not available, contrary to what is indicated in the
MoE website. The full EIA reports may nevertheless be consulted at the MoE
resource centre or at the office of the local authority concerned.
Public participation would be facilitated if there were systematic posting of
an EIA licence application on the MoE website for public inspection, instead of
this being up to the DDoE’s discretion. The public can only participate effect-
ively if enough information is provided with respect to the proposed
103 Alternatively it can be made available at the municipal council or district council of the
area where the undertaking is to be carried out or other places specified by the DDoE: id,
para 88.
104 EPA, sec 20(2).
105 Id, sec 20(3)(d).
106 Id, sec 20(4).
107 Id, sec 20(5). See extracts of the EIA reports that have been posted on the MoE website
since 2011: <http://environment.govmu.org/English/eia/Pages/EIA-Reports.aspx> (last
accessed 21 February 2017).
108 See EIA report extracts, ibid.
 J O U R N A L O F A F R I C A N L AW VOL , NO 
undertaking. Further, procedures for the approval of a PER only involve public
participation if the DDoE requests any public department, enforcing agency or
NGO to submit observations in writing on the PER within not more than 14
days of the request.
Where an EIA application is submitted through the BOI, observations may
not be made later than seven days after the request and the DDoE shall
refer the application to the EIA Committee not later than 14 days after the
expiry of the time limit set for the submission of public comments.109 The
EPA does not require public inspection for such applications, but refers to
observations that the DDoE may request in writing from any public depart-
ment, enforcing agency, NGO or any other person. The DDoE may also request
a technical committee to be set up for advice on an EIA application or require
the proponent to include additional information in the EIA application.
In the context of the conversion of agricultural land to other development
purposes to optimize land available for creating economic value, EIA licence
applications are made through the LPES Technical Committee. However
there is no public participation in such decision making.
It is also argued that better consideration should be given to public com-
ments110 resulting from public inspection with respect to an EIA licence appli-
cation. The EPA should include provisions to take into account public
comments or the views of those who have been consulted.111 In order to
enhance public participation in the preparation of an EIA report, the particu-
lars of any public consultation held in the area where the undertaking is to be
located should be made available to the public.112 It is recommended that a
right of access to information be included in the Mauritian Constitution or
the EPA regarding environmental information or that specific legislation be
introduced with respect to the right of access to information to promote a cul-
ture of transparency and accountability in the private and public sectors.113
Further, it is important to include environmental NGOs in the EIA
Committee to enhance public participation in the EIA process. The committee
is currently composed of the permanent secretaries of the MoE (as
109 EPA, sec 21(5).

110 Id, sec 20. OJ Lim Tung “Development and balancing of interests in environmental policy
and law in Mauritius” in M Faure and W du Plessis (eds) The Balancing of Interests in
Environmental Law in Africa (2011, Pretoria University Law Press) 261 at 273.
111 P de Boucherville Baissac “Mauritius country report” at 11 in P Tarr Environmental Impact
Assessment in Southern Africa (2003, South African Institute for Environmental
Assessment), available at: <http://www.saiea.com/saiea-book/> (last accessed 21
February 2017).
112 Alternatively the particulars should be made available to other members of the public
who might be affected by the respective undertaking. Lim Tung Environmental Law in
Mauritius, above at note 8, para 117. The particulars of any public consultation in the
area where the undertaking is to be located are included in the EIA report (EPA, sec 19).
113 For instance, the Constitution of the Republic of South Africa 1996, sec 32(1) and the
South African Promotion of Access to Information Act 2 of 2000 provide for the right
of access to information.
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
chairperson) and of the relevant ministries (having responsibility for the sub-
jects specified in the sixth schedule),114 and the DDoE.115 The EIA Committee
may also establish a sub-committee to examine part or the whole of the EIA or
co-opt any person as a member, albeit with no voting rights.
The DDoE is required to give notice of a summary of the minister’s decision
to approve or reject the EIA, stating the place where the full decision is avail-
able.116 It is recommended that the EPA include a legal requirement to pub-
lish the final decision (in its entirety) regarding the approval of an EIA
licence or PER or to make public the reason for which it was granted.117
Use of mitigation measures and alternatives

Mitigation represents any process, activity or action designed to avoid, reduce
or remedy significant adverse environmental effects likely to be caused by a
developmental project, as well as remaining negative repercussions.118 In prac-
tice, the outcome of mitigation in or surrounding a development site should
be the avoidance of predicted effects or the reduction of such effects to an
acceptable level of impact or their remediation.119
The Mauritian EIA process does require the indication of mitigation mea-
sures and alternatives by proponents in the application for an EIA licence120
or a PER,121 while the Environment Assessment Division ascertains that appro-
priate measures are taken to mitigate any adverse environmental impact. An
environmental monitoring plan is required for an EIA application, describing
respective mitigation measures and how the adverse impact of a particular
activity will be monitored during its design, construction and operational
phases. Any alternative manner or process in which a proposed undertaking
may be carried out so as to cause less harm to the environment needs to be
indicated in the EIA application.
However, better implementation of such mitigation measures and alterna-
tives is necessary in practice. Where EIAs concern coastal development, it is
strongly recommended that legal requirements be included in an EIA report
or PER to provide for mitigation and adaptation measures to fight against
114 These are the ministries with responsibility for agriculture, fisheries and marine
resources, health, industry, local government, public infrastructure, water resources
and waste water.
115 EPA, sec 22.
116 The DDoE shall give notice as soon as possible, but not later than seven working days
after the day on which the minister makes his decision: id, sec 23(5). Notice must be
given in the Government Gazette and in the newspapers in which notice of the application
was given.
117 de Boucherville Baissac “Mauritius country report”, above at note 111 at 11.
118 R Marshall, J Arts and A Morrison-Saunders “Application of mitigation and its resolution
within environmental impact assessment: An industrial perspective” (2003) 19/3 Impact
Assessment and Project Appraisal 195 at 195–204.
119 Id at 195.
120 See EPA, sec 18(2)(h) and(k).
121 Id, sec 16(2)(d).
 J O U R N A L O F A F R I C A N L AW VOL , NO 
climate change effects.122 It is necessary for EIA and PER applications to

include arrangements for emergency responses to activities that present a
grave and imminent danger to biological diversity.123 A PER should also
include an environmental monitoring plan with decommissioning instruc-
tions to remove an activity from active status and related issues. Further, it
is argued that a precautionary approach regarding the EIA report or PER
should include not only mitigation measures, but also a “no development”
option as an alternative.124 It is important not to proceed with the approval
of a proposed undertaking where there are uncertain environmental risks
regarding its significant or irreversible negative effects.
PRECAUTIONARY APPROACH AT DECISION MAKING AND AT

POST-APPROVAL STAGES OF THE EIA PROCESS
In general, proponents who have applied for an EIA or a PER only provide
information on what was available before the EIA or PER was approved. At
the operational level, it is important to check whether what was predicted
in terms of an EIA has been realized and whether mitigation measures are
being appropriately implemented. Precaution is also the leading policy
approach to guide environmental decision makers and EIA licensees and
operators with an approved PER. The CBD Voluntary Guidelines on
Biodiversity Inclusive Impact Assessment acknowledge the importance of
the monitoring and follow-up of EIAs, while the major international funding
agencies require EIA monitoring in their procedures.125 International princi-
ples for best practice EIA follow-up require monitoring, evaluation, manage-
ment and communication elements.126 This article now considers a
precautionary approach in the post-decision stage process with respect to
EIA monitoring, compliance and auditing.
122 Climate change adaptation and mitigation are a necessity for SIDS and essential compo-
nents to be taken into consideration in EIAs. For instance, Tuvalu has EIA procedures
encompassing disaster risk reduction arising from severe extreme events and sea level
rise. See Payet “A review of environment impact assessment”, above at note 93 at 213.
123 CBD, art 14(1)(e).
125 See Commission for Environmental Assessment “Biodiversity assessment”, above at note
12 at 40; N Craik The International Law of Environmental Impact Assessment (2010,
Cambridge University Press), chap 6. The World Bank and regional development banks
(such as the African Development Bank) have well-established EIA procedures applicable
to their lending activities and projects undertaken by borrowing countries.
Environmental assessment is one of the safeguard policies used by the World Bank
to examine the potential environmental risks and benefits associated with bank
investment lending operations. See World Bank “Environmental assessment”
(operational policy 4.01), available at: <https://policies.worldbank.org/sites/ppf3/
PPFDocuments/ 090224b0822f7384.pdf> (last accessed 21 February 2017).
126 R Marshall, J Arts and A Morrison-Saunders “International principles for best practice EIA
follow-up” (2005) 23/3 Impact Assessment and Project Appraisal 175 at 176.
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
EIA monitoring
Implementing precaution in decision making regarding EIA includes environ-
mental conditions to monitor the operation of the approved activity, even
with an EIA licence or approved PER. A skeletal post-EIA monitoring unit mon-
itored conditions under which an EIA certificate was issued127 until the EIA /
PER Monitoring Committee128 was set up in 2013.
The EIA / PER Monitoring Committee lays down programmes and ensures
their implementation to follow up on progress in line with approved EIAs
or PERs.129 It may monitor exercises which may be necessary to ensure compli-
ance with the conditions of an EIA licence or an approved PER. It may deter-
mine enforcement measures in the case of non-compliance. This
committee130 is mainly composed of representatives of public departments
and the author argues that it should also include environmental NGOs to
ensure better monitoring. Well defined environmental monitoring plans
and emergency management plans should be required for both EIAs and
PERs to improve monitoring. Further, improvements are required to the mon-
itoring of the conditions of an EIA licence or approved PER before it is
renewed. Monitoring EIAs and approved PERs also entails communicating
the results of EIA follow-up to provide feedback on project implementation
and EIA processes. The communication of EIA follow-up results should involve
proponents, EIA regulators and stakeholders. Providing unrestricted access to
information on environmental conditions to different user groups will
undoubtedly improve understanding regarding projects which might need
environmental and ethical awareness.131
It is recommended that proponents of projects and activities be legally
required to monitor and report publicly on the environmental consequences
and outcomes associated with their activities. This would also entail the pro-
ponent setting up an environmental management team to monitor the envir-
onmental monitoring plan.
127 de Boucherville Baissac “Mauritius country report”, above at note 111 at 11.
128 EPA, sec 28A.
129 The committee meets at least once a month and must provide a report on its activities to
the environment minister every six months (at the end of July and January).
130 It includes the DDoE, one or more officers from the DoE, a representative of the relevant
ministries (having responsibility for the subjects specified in the sixth schedule of the
EPA), a representative of the Police de l’Environnement (the MoE created the
Environmental Police unit in 2000; it comprises police officers, nominated by the com-
missioner of police as a special unit of the Mauritius Police Force; see Lim Tung
Environmental Law in Mauritius, above at note 8, para 76) and the chief executive of the
relevant local authority.
131 Ministry of Environment and Sustainable Development “Mauritius environment outlook
report, 2011: Summary for decision makers” at 5, available at: <http://environment.govmu.
org/English//DOCUMENTS/MAURITIUS%20ENVIRONMENT%20OUTLOOK%20REPORT%
20SUMMARY%20FOR%20DECISION%20MAKERS.PDF> (last accessed 21 February 2017).
 J O U R N A L O F A F R I C A N L AW VOL , NO 
EIA compliance and audits

After an EIA or PER has been approved, auditing enables the management and
evaluation of the environmental performance of the project or activity. Audits
are meant to check the accuracy of predictions made in the EIA or PER reports,
to assess the success of mitigation and the practical impact of the project.
Despite the establishment of the EIA / PER Monitoring Committee, EIA
auditing is still lacking in the post-decision stage and there is no strict compli-
ance by operators who have already been granted an EIA licence or a PER.132
Very often, it is only when there are complaints regarding an activity that
enforcing authorities check compliance issues.133
Environmental conditions in EIA licences or approved PERs also need to be
outcome focused environmental conditions that are clear, reasonable and
auditable, so that they control potential risks and impact better.
Inter-sectoral cooperation by the regulator, proponent and community is
also necessary at this stage to monitor activities and compliance for activities
with an EIA licence or approved PER.134
CONCLUSION
A strong form of the precautionary principle would call for measures to lessen
the risk of environmental harm, although the application of the precaution-
ary principle in a developing state may be hampered by the political desire
to prioritize economic interests. Advancing precaution in local environmental
decision making in a substantive manner is greatly needed, to the extent that
precautionary considerations are not mandatory for decision makers with
planning powers. Besides, the precautionary principle is only weakly incorpo-
rated in policy documents. Giving full effect to the precautionary principle to
influence decisions and environmental management practice in the EIA pro-
cess would mean integrating it in the EIA mechanism by way of legislation.135
Enhanced precaution, transparency and accountability are of utmost
importance in the Mauritian EIA process. An EIA should not be a mere proced-
ural requirement to secure a development permit, but a meaningful environ-
mental precautionary exercise to bring about real environmental benefits.136
Besides, an adequate EIA for national scale developmental projects to a large
133 The enforcement mechanism provided by Mauritian environmental law is based on a
sectoral approach involving different environmental institutions, including local
authorities, under the coordination of the DoE. Institutions responsible for enforcement
are the DDoE, enforcing agencies, the Police de l’Environnement and authorized officers
(id, para 71). Officers of the Rodrigues Environment Unit are vested with the same
powers with regard to Rodrigues as authorized officers under the EPA.
134 The cooperation of the owner of the activity is required for post-EIA monitoring; see
Ramjeawon and Beedassy “Evaluation of the EIA system”, above at note 53 at 543.
RETHINKING THE REGULATION OF ENVIRONMENT IMPACT ASSESSMENT 
extent determines successful borrowing from development banks or foreign

aid agencies.137 EIA should also not be used as a project justification tool,
but rather as project planning for environmental protection. In practice, gov-
ernmental authorities and proponents of projects seeking EIA approval may
use EIAs as a way of artificially legitimizing proposals and policies,138 while
Mauritius has reached a stage in its economic development where it can afford
the “no development” option for projects with major impact. The importance
of a precautionary EIA in Mauritius and other SIDS cannot be overstated to
ensure their resilience in light of global environmental change and
uncertainty.
137 See World Bank “Environmental assessment”, above at note 125.

138 A Macintosh “Best practice environment impact assessment: A model framework for
Australia” (2010) 69/4 Australian Journal of Public Administration 401 at 405.
Reproduced with permission of
copyright owner. Further
reproduction prohibited without
permission.

Rethinking The Regulation of Environment Impact Assessment and Precaution in Mauritius

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Rethinking The Regulation of Environment Impact Assessment and Precaution in Mauritius

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Journal of African Law, 61, 2 (2017), 227–251 © SOAS, University of London, 2017.

Rethinking the Regulation of Environment

* Licence en droit, Montpellier, France; maîtrise en droit (Montpellier); diplôme d’études

consideration integrated pollution control7 with an EIA mechanism.8 This

participation sufficient in relevant decision making in developmental pro-

THE PRECAUTIONARY PRINCIPLE AND EIA

The precautionary principle

General Assembly in 1982 and was reaffirmed in 1990 by European states in

legislation.23 The nature of the concept of precaution is still being debated, in

The precautionary principle and EIA in Mauritius

invokes the precautionary principle to prohibit ships with radioactive cargo

Diversity (CBD), Mauritius is required to introduce appropriate procedures

PRECAUTIONARY APPROACH AT PRE-APPROVAL STAGE OF THE

Review of the scope of undertakings requiring an EIA

Review of listed undertakings

receiving environment, human health and property.64 A PER application is

Necessity for a strategic EIA

73 Gullett “The precautionary principle”, above at note 4 at 148–49.

potential alternatives and mitigation measures.76 The SEIA is often referred to

SEIA, would suit the assessment of transboundary impact better. Although

Basic screening and scoping requirements

EIA studies.93 One way of overcoming capacity constraints may be to introduce

97 EPA, sec 28.

Public participation at pre-approval stage of the EIA process

109 EPA, sec 21(5).

Use of mitigation measures and alternatives

climate change effects.122 It is necessary for EIA and PER applications to

PRECAUTIONARY APPROACH AT DECISION MAKING AND AT

EIA compliance and audits

extent determines successful borrowing from development banks or foreign

137 See World Bank “Environmental assessment”, above at note 125.

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