Woodlands Holdings, a private company in Seychelles, and its director as petitioners, won an environmental pollution case against the government in the Constitutional Court on Thursday. The first time in the history of the Seychelles' judicial system for such an outcome. The matter will now be taken into consideration by the Supreme Court for the final determination on damages to be paid.

The company, which owns about 10 parcels of land situated at Fairview Estate, La Misere on Mahe, lodged a civil suit in the Supreme Court raising concerns about the effusions of waste material polluting a river close to the property owned by the Ministry of Environment in September 2018.

The director of the company, the second petitioner in the case challenged the decision of the government of Seychelles "in allowing a resident of Fairview to conduct extensive farming activities, in a residential area, to the detriment of the health of other residents. He avers that this in itself is a serious flaw in the machinery of the government which continues unabated."

In her summary for the respondents, State Counsel Corrine Rose submitted that "it is the responsibility of the person causing the pollution to take steps to it clean up and restore the environment to its prior condition before the pollution occurred and at their own expense. Although Counsel recognises that the Ministry is liable to take remedial action where a person fails to do so, she states that the onus is on the person responsible for the pollution in the first instance."

The petitioners maintain that "the state remains under a duty to fulfill the obligations to clean the pollution as provided for under Article 38 of the Constitution, and that the Respondents have committed a faute by their action/inaction or omission and consequently put the health, safety and environment of the Petitioners in danger, and which persists to date."

Rose submitted that "in view of the recognition that several pieces of legislation have been enacted with the aim of protecting and preserving the environment, this demonstrates that the State has taken measures to protect, preserve and improve the environment. Accordingly, that there is no merit in the attempt by the Petitioners arguing that there has been a breach of Article 38 that needs to be addressed in this Court."

The petitioners said that they have suffered loss and damage for which the respondents - the Ministry of Environment, the Ministry of Health and the Attorney General - are jointly and severally liable to the petitioners.

As such they are claiming SCR 3 million ($228,000) in damages for moral damage for the inconvenience, anxiety and emotional distress – SCR 1 million ($76,500), moral damage for risk to health, life and livelihood - SCR 1 million ($76,500), and moral damage for exposure to health risk, annoying smell and unsafe environment- SCR 1 million ($76,500).

The presiding judge of the case, Melchior Vidot, said that during the course of the plaintiff's testimony, it became clear that the allegation is that the defendants are in breach of obligations under Article 38 of the Constitution and also failed to provide the plaintiff with a clean, healthy and ecologically balanced environment.

Justice Vidot referred the case to the Constitutional Court on October 29 in 2021.

Article 38 of the Seychelles Constitution states that "the State recognises the right of every person to live in and enjoy a clean, healthy and ecologically balanced environment and with a view to ensuring the effective realisation of this right the State undertakes; to take measures to promote the protection, preservation and improvement of the environment; to ensure a sustainable socio-economic development of Seychelles by a judicious use and management of the resources of Seychelles; and to promote public awareness of the need to protect, preserve and improve the environment."

The Constitutional Court had to look into whether the obligations entrenched in Article 38 extend to the State and answered yes to all three questions asked.

The questions were whether the obligation entrenched in Article 38 extends to the State, to ensure that private citizens do not pollute the environment? Whether there is an obligation on the State to take steps to clean up any pollution caused by such citizens; and whether failure to do so may render the State liable to its citizens for damages?

With this, the case was referred to Justice Vidot to determine the petitioners' claim in accordance with the considerations and findings of the Constitutional Court.