Chapter IV
Box IV.2 The concept of legitimate expectation in the jurisprudence of the Anglophone Caribbean
Economic Commission for Latin America and the Caribbean (ECLAC)
The common law that operates in most countries in the Anglo-Saxon tradition, based mainly on the development of case law, has seen the emergence of important concepts that have helped to clarify the scope and implications of access rights in environmental matters. One of the concepts of most importance in the countries of the Caribbean subregion is that of “legitimate expectation”. Framed by the principles of natural justice and equity, the term has been defined as any expectation that, while not constituting a legally enforceable right, is based on a reasonable assumption that has standing in public law. This allows anyone to appeal a decision that deprives them of a well-founded and reasonable expectation of being treated in a particular way. The expectation rests on one of the following assumptions: (i) that the person will be consulted or that other appropriate procedures will be followed before a decision is taken, or (ii) that a substantive benefit will be granted or, if the person already enjoys this benefit, that it will be maintained or not substantively altered (Claim No. CV2013-04146, High Court of Justice of Trinidad and Tobago). The doctrine of legitimate expectation has been upheld in numerous environmental cases in the Caribbean subregion. Thus, for example, in Claim No. HCV 5674/2010 (Jamaica Environment Trust versus the Natural Resources Conservation Authority and the National Environmental and Planning Agency), the Supreme Court of Judicature of Jamaica established that the environmental authority had infringed the legitimate expectation of an environmental non-governmental authority (NGO) and the general public of having access to all relevant information before certain construction and dredging projects were undertaken on the Palisadoes coast. An environmental impact assessment had originally been required, but after some alterations a new plan was presented that did not have to be subjected to such an assessment. The Court ruled that the new terms and conditions of the project also had to be made public. Similarly, the High Court of Trinidad and Tobago ruled that while there was no legal obligation to carry out a process of public participation before authorizing the construction of a sports complex in the Orange Grove Savannah park, users and people directly affected by the project were entitled to be consulted, especially considering that the Ministry of Planning and Development had not fulfilled its obligation to update the development plan for the area, which provided for a compulsory public participation procedure. The Minister, in the Court’s view, had an obligation to act fairly and equitably, meaning that the appellants should be consulted in an appropriate and significant way. The ruling included a reminder that the individuals and groups directly affected by a decision had a right to be informed of that decision and should have the opportunity to make comments and representations before it was adopted. See Claim No. CV2013-05227 (Ulric ‘Buggy’ Haynes Coaching School and 18 Ors. versus the Minister of Planning and Sustainable Development). Source: Economic Commission for Latin America and the Caribbean (ECLAC), on the basis of W. Anderson, Principles of Caribbean Environmental Law, Washington, D.C., Environmental Law Institute (ELI), 2012.
As can be seen from table IV.4, participation in most countries involves the ability to access study dossiers (sometimes including a summary in plain language) and make representations, either orally or in writing. The holding of public hearings as part of environmental impact assessments is usually a prerogative of the authority and is decided on case by case. Because of the technical character of the information in environmental impact studies, the time available for accessing a study and making representations is crucial for ensuring effective public participation. In only a few countries, such as Chile, Guatemala, Mexico, Panama, Paraguay, Saint Kitts and Nevis and Trinidad and Tobago, are the time limits for studying an environmental impact study dossier and making representations explicitly laid down by law. In these cases, time limits range from 8 to 60 days, depending on the project category. 92