Comments on Climate Bill No. XIV of 2020

By Nalini Burn and Adi Teelock
Members of Platform Moris Lanvironnman (PML)

CONTENT

Overview of Key messages

What is the time span to present the Bill?

What the Bill says in each part

Explanatory memorandum

Part I- Preliminary

Part II- Interministerial Council on Climate Change

Part III- Department of Climate Change

Part IV Climate Change Committee

Part V Climate Change Measures

Section 15: The National Inventory Report

Sub part B Duties and Obligations of Institutions (public and private)

Sub part C- Reporting and Public Consultation

Part VI- Application of the Act to Rodrigues.

Part VII Miscellaneous

(24) National Implementing Entity

(25) Enforcement

(26) Protection from Liability

( 27) Confidentiality

(28) Offences

(29) Regulations

(30) Consequential amendments

Overview of Key messages

In our view, the Climate Bill is being rushed through with little scope for deliberation, collective reflection and public participation.  “Kwi vide pou comply.”

Let us recall that Mauritius, a Small Island Developing State, was ranked 16th among the highest risk countries in the World Risk Index in 2018[1], and first in Africa. The Index combines exposure (to climate change) and vulnerability. Vulnerability has three dimensions: susceptibility, lack of coping capacity, lack of adaptive capacities. Although our ranking has improved to 53rd place among 186 States in the World Risk Index 2020, we still lack coping and adaptive capabilities.

One would have wanted this Bill to support building adaptive capacity as well as coping capacity and to recognise the close link between disaster risk and vulnerability to climate change. It barely acknowledges risk.

However, while yet more institutional mechanisms are set up, what they will do and aim for, and how they are to be held accountable to deliver results, are very vaguely provided for in the legal framework.

Box 1: A long overdue Climate Bill to be presented to Parliament.

A draft Climate Change Bill exists since 2012
In principle, the formulation of a Climate Change Bill has been approved by the Cabinet and the draft is ready to be passed next year.
The objective of the draft Climate Change Bill is to establish the legal framework and mechanism towards making Mauritius climate change – resilient and achieve a low—carbon economy in line with the overarching Government objectives of developing a green economy and the Maurice Ile Durable initiative.
Final Evaluation Report, Africa Adaptation Programme in Mauritius, 2012
https://erc.undp.org/evaluation/evaluations/detail/6260

The Bill is premature, and yet overdue at the same time, is hollow, not building on past and ongoing actions. This is because it is being passed seemingly in the absence of a climate policy, strategy and action plan that it can give legal force to. It contains no policy directives and does not provide the legal framework for climate-interventions in substance. What it instructs about is who is to carry out measures, without specifying the policy choices, the measures, either regarding mitigation or adaptation and providing the legal underpinning for building capacity to do so.

It conveys the erroneous impression that our country is only now embarking on climate-change focused interventions and climate-related intervention!

  • In fact, civil society and business have spent time collaborating with the Ministry of Environment during the Assises de l’Environnement to spell out what needs to be done.
  • These build on decades of work, projects and initiatives and their achievements and lessons learned.
  • Many projects are ongoing and overlapping and their products and outcomes have not been taken into account in crafting this hollow piece of legislation.

Box 2: Existing frameworks and strategies that needed to be updated and then underpin the legislative framework-1

Existing frameworks and strategies -1
The Government of Mauritius already has a series of frameworks including policies, strategies, plans, draft legislation, to draw on in formulating a National Climate Change Adaptation Strategy and Action Plan:
– The National Climate Change Adaptation Policy Framework, 2012 prepared under the Africa Adaptation Programme which includes a Climate Change Adaptation Strategy and Action Plan, adopted by Government in 2013;
– Integrating Climate Change into the Coastal Planning & Management in the ROM, February 2013.
The Mauritius Renewable Energy Agency (MARENA) has developed a Renewable Energy Strategic Plan (RESP) 2018-2023 which needs to be built on to prepare a National Climate Change Mitigation Strategy and Action Plan.
https://www.marena.org/strategic-plan/resp-overview

The Bill is poor in ambition and bite. It does not reflect much national political will and purpose.

  • It does not have clear objectives, no time-bound targets and enforceable measures to effect transformation towards resilience. This is unlike Climate Change legislation elsewhere. They combine concrete, measurable purpose and the duties of the relevant authorities to achieve the purpose.
  • It is focused on collecting and reporting on data.
    • But the bill does not provide the legal framework for the data to be explicitly used to drive policy, for policy to be evidence-based, set and rank priorities, identify and monitor measures to achieve and report on targets.
  • It seems to be also focused on being able to access different climate finance mechanisms and instruments.
    • While they do enlarge the resources of the relevant ministries, the Bill does not stipulate that the finance be most effectively targeted and used.
  • On the issue of climate finance, it has to be underscored that most of the past and ongoing initiatives derive from donor financing, not from the Government of Mauritius’s commitment of national budgetary resources.
  • This reflects poorly on the policy priorities regarding environmental matters. Attention is only prodded when official development assistance funds are available to mobilise.

Box 3: Existing frameworks and strategies that needed to be updated and then underpin the legislative framework-2

Existing frameworks and strategies-2
With support from the Adaptation Fund, a National Climate Change Adaptation Strategy in the Coastal Zones of the Republic of Mauritius (NCZAS) has been prepared. The objective of the NCZAS is to address “all perceived climate change risks in the coastal zone of ROM to promote and enforce resilience measures. The Strategy should include
a) Relevant strategies, policies, laws, regulations and projects pertaining to the coastal zone in ROM;
b) Results of map-based vulnerability assessment and adaptation options based on that assessment; and c) Recommendations for new economic instruments and best technical, economically efficient, and institutionally relevant adaptation practices especially in the SIDS context of Mauritius.
” The NCZAS was officially presented in May 2019 but has not been made public.
Source:
http://www.govmu.org/English/News/Pages/Capacity-Building-in-coastal-risk-management.aspx
https://info.undp.org/docs/pdc/Documents/MUS/Mauritius_AF_prodoc.pdf
http://www.undp.org/content/dam/mauritius_and_seychelles/docs/Procurement/12AUG16/RFP%20National%20Coastal%20Zone%20Adaptation%20%20Strategy_08.08.16.pdf

The Bill does not seem to be an integrative piece of legislation specifically for cross-cutting climate change. It seems to be a hybrid.

  • It adds on to the piecemeal patchwork. It makes – deletes, amends – other pieces of climate-relevant legislation (the Environmental Protection Act of 2002), but not all (in particular the little used National Disaster Risk Reduction and Management Act of 2016), adding to a confusing picture. 

This is despite its ambition to go for “greener growth” which is wide-ranging in scope and impact.

But without providing a legal framework for how to achieve this and no clue about how to reverse a single-minded pursuit of economic growth which degrades the environment:

  • It does nothing to prevent a Minister of Environment from suspending sections of his/her own legislation, as we have seen in the case of delisting the Metro Express Limited as mass transit so that it will not have to obtain an Environment Impact Assessment License.

The Bill risks creating more silos in the executive arm of government.  What it does provide for is the institutional mechanisms to implement, “the how and by whom”, without the “what” being defined. Process versus substance.

  •  These mechanisms go against the grain of mainstreaming climate change across all spheres of government, business and in wider social organisation. 
  • They risk being another silo which can frustrate general ownership of building resilience in the face of climate change.
    • Parts II, III, IV, even part of V of the Bill dwell on institutional mechanisms, as well as the schedules.

It gives too much power and discretion to a minister and/or head of Department to decide or not to act on key climate change measures, as whatever that person, thinks fit. 

  • These regulatory measures are limited in scope and purpose.
  • They are focused mainly on complying with reporting to the international bodies mentioned, without much legal basis for complying with adaptation and mitigation actions, and being accountable for them.

There is no strong legal basis for being accountable for taking harmful actions and for not taking important “do no harm” actions. 

  • There is little regarding enforcement and implementation.  The permissive business facilitation and business-driven organisation of land and ecosystem services continues (through the EIA business enterprise-driven mechanism).

While fairly recent global reviews of climate change legislation conclude that the emphasis should be on strengthening of and implementation of existing legislation to achieve results, rather than create new ones[2].

What is the time span to present the Bill?

The Climate Change Bill has been on the website of the National Assembly since 16 October 2020. According to the Order Paper, it is to be presented on Tuesday 3rd November, with all three readings scheduled on the same day. 

Our Comment

  1. What is the reason to rush through this piece of legislation?
  2. This is too short a time to deliberate. Whether in Parliament or to canvass views of civil society advocates for climate justice and business to enrich and broaden the deliberations.
  3. The Bill has not been published on the website of the relevant ministry, which is meant to have a new Department with access to Climate Finance. 
  4. It is an opportunity missed to raise awareness about climate change and galvanise collective action and create a sense of urgency about the need to act.
  5. We are left to criticise the Bill rather than collaborate on developing a good one. This criticism about its shortcomings and purpose has already come from many other NGOs.
  6. It should be landmark and robust, enabling legislation and it certainly is not that, in the face of a climate emergency. 

What the Bill says in each part. 

Explanatory memorandum

Our comments

The explanatory memorandum reveals what the Bill is all about. 

  • It is mainly to comply with reporting obligations under the UNFCC, the Kyoto Protocol, the Paris Agreement and other instruments.  It is the stated main object of the Bill.
    • The opening sentence has missing words. One does not implement obligations. One complies to them.
  • Why it is being rushed through may have to do with complying with programme fund performance indicators, and/or to access Climate Finance. Refer to section 2(f)

Of the 6 areas for which the Bill establishes a legal framework,

  • 3 are about instituting departments and committees
  • 2 are about data collecting, monitoring and reporting
  • 1 is about compliance to fiduciary standards for accessing climate finance

The stated objective is to “make Mauritius a climate-change resilient and low emission country” and a “greener economy.

However, the legislation does not provide for meeting these objectives.

  •  There are no targets
    • There is no directive to establish a baseline from which to move towards the target. And as already said, no strategies and measures to reach them.
    • Data collecting and reporting on its own serves no real purpose when it comes to drive towards low emission and resilience. 
    • Nor does it give a sense of direction and of having to comply with the legislation to reach a target.
    • The First Intended Nationally Determined Contribution as per the Paris Agreement was set in September 2015, setting mitigation targets for 2030[3]. What has happened since? Will there be a second one? The Bill is silent on this.

Other national/State climate change legislation

  • UK (2008)[4] specifies, on the mitigation side, to set and meet targets for emissions, and it directs a duty to prepare and make proposals for setting and meeting carbon budgets. On the adaptation side, there are measures to report on impact and adaptation to climate change. Specific sectors cover solid waste reduction, transport, renewable fuels.
  • State of Victoria, Australia (2017)[5]: sets targets by 2050, requires 5-yearly interim targets, sets policy objectives and guiding principles to “embed climate change in government decision-making”, requires a Climate Change Strategy which will set out how Victoria will meet its objectives; specifies that the reporting is to provide “transparency, accountability and ensure the community remains informed”.

Policies, strategies and actions

The measures proposed fall well short of meeting the objectives which are stated in a very vague way. The Paris Agreement focuses on meeting Nationally determined Contributions (NDCs). As it is non-binding internationally, this is another missed opportunity to show resolve and drive in meeting them backed by national legislation. 

(see comments on Part V Climate Change Measures)

The legislation does not seem to be based on prior and ongoing projects and actions, building on and giving legal clout to what has been done nationally and in regard to international obligations.

The Assises de l’Environnement during January to March 2020 in face-to-face thematic workshops spelt out the following elements of policy and strategy:

Box 4: Proposed policies and strategies of the thematic workshop of the Assises de l’Environnement, January-March 2020

1. Enhance resilience by adopting a ridge-to reef approach and preferably nature-based solutions in all climate-related actions.
2. Reduce reliance on fuel by 2050, without specifying targets.
3. Accelerate mainstreaming of climate change in key sectors – with PML also putting emphasis on health given the global pandemics (through adaptation plans).
4. Mainstream climate change in the development control process, while updating the National Development Strategy using an area-based Strategic Environmental Assessment Framework (SEA), incorporating Environmentally Sensitive Areas.
5. Increase the carbon sink capacity through greening of towns and villages.
6. Enhance/strengthen governance on climate change to undertake climate change adaptation, disaster risk reduction and mitigation measures. 
7. Ensure a human rights-based approach to all climate change actions.

As PML members, we have also called for 

  • a policy brief on the principles, international norms and standards and national policy orientation to underpin the Climate Change Bill (as a communication and advocacy tool); 
  • consulting widely on the bill, which needs to be promulgated and harmonised with the Wetlands Bill being finalised and eventually an ESA Bill.

Regarding the broader agreements, three instruments are relevant: The

  • Paris Agreement of 2015, 
  • 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs), 
  • Sendai Framework for Disaster Risk Reduction 2015-2030. 

The Bill makes no mention of Sustainable Development Goals (SDGs), of subscribing to the Objectives and adhering to, and localising the Targets and indicators.

  •  Yet SDG 13, Take Urgent action to tackle climate change and its impacts acknowledges that the United Nations Framework Convention on Climate Change is the primary international, intergovernmental forum for negotiating the global response to climate change.”
  • The other closely-related SDGs are 9 (sustainable infrastructure) 11 (sustainable, safe, resilient cities and human settlements), 12 (sustainable production and consumption), 14 (conserve and sustainable use of oceans) and 15 (terrestrial ecosystems and land and biodiversity loss). And also, the other SDGs are pertinent, including SDG 10 on inequality, which would enable a climate justice as well as economic justice framework – which is so lacking in our policy and legislative frameworks.
  • They fall within the mandates and mission of the key Ministries of Environment of Ocean Economy, of Agro-Industry and Food Security, Housing and Land Use Planning among others.

In addition, there are the existing projects under the Climate Action Fund (about to end, with an extension to November 2020) and the Green Climate Fund over a decade. The latter in fact puts an emphasis on nature-based solutions, a gender and human rights-based approach, which is practically absent in the principles underpinning this Climate Change Bill, despite the Minister of Environment, Climate Change and Solid Waste Management’s statement in the National Assembly during the presentation of the Bill on 3rd November 2020.

The Bill purports to “developing Mauritius into a greener economy” (sic). However, the members of the National Climate Change Adaptation Strategy and Action Plan Committee include a member of the Council of Registered Professional Engineers of Mauritius but no expert(s) in nature-based solutions. According to the Bill, the Minister responsible for Climate Change “shall promote and encourage business initiatives and environmentally sound technologies which may assist in adapting to climate change and reducing greenhouse gas emissions;” (7(1) c). There is however no mention in that section of nature-based solutions for adaptation and mitigation.

This despite UNFCC and the Adaptation Fund presenting nature-based solutions in Climate Action worldwide and specifically in Small Island Developing States as having a key role in taking Global Climate Action beyond 2020.

We deplore and condemn that practically none of the work of the Assises, nor the project-based knowledge gained have folded into the drafting of this Bill. The approach is not to capitalise but to continue to be piecemeal, ad-hoc. This is why the Bill is so hollow on substance.

A disaster risk coupled with a climate resilient approach is missing.

  1. The Bill is not based on a policy framework which recognises that climate change and disaster risk are closely interrelated. 
  2. There is no mention of the Sendai Framework on Disaster, which is underpinned by a gender equality and human rights-based approach. Nor that climate change (over which Mauritius as a minute emitter, has no control) is not the only major driver of climate-related risk. 
    1. All human actions potentially add to exposure to hazards and increase the vulnerability to climate events. Hence the need to mainstream climate action across all policies, especially addressing economic and investment policies that go against green growth.

Yet, again in this instance, Mauritius has mobilised specific project level-expertise to work on these fronts as separate tracks or even considering them together explicitly:

  • In 2019, it called on the Capacity for Disaster Reduction Initiative (CADRI), regrouping some 20 organisations, to undertake a scoping mission to Mauritius to boost institutional capacity for risk reduction in the context of climate change[6].
  • Yet the only two mentions of disaster risk reduction in the Bill are about the composition of the many committees to be set up!

Part I- Preliminary

Our comments 

There are missing definitions, as has been the case in recent legislation.

There are no definitions for “sand dunes”, “lakes” and “marshes” mentioned in 30(4) and 30(6) of the Bill. The Wetland Bill should include definitions for these, but it has not been finalised yet or presented to Cabinet.

Part II- Interministerial Council on Climate Change

Its objective is to set the national objectives, goals and targets! These should already be in existence and the object of the Bill to give legal sanction to them!

The Council, chaired by the Prime Minister includes practically all the ministers and heads in the government sector primarily – except for the Minister for Environment!

Its composition is identical with that of the National Environment Commission – except for the Minister for Environment – as per the Environmental Protection Act. 

  • It will sit on these domains separately, at its meetings and not consider climate change in the latter?

Our Comments 

  • This is why we say that this Bill is premature. It should be spelling out and enforcing the objectives, goals and targets, policies, strategies and measures after decades-long work and during what is now the second legislature of the party in government. It should not be about making provision in Part V for them to be made!

The work being proposed under the aegis of this new Council could have been done under the Commission on Environment!

  • We will have separate inter-ministerial bodies to oversee and set the agenda in what are inter-related and overlapping domains.
  • When one looks at the powers of the Minister, what is new to what s/he should already be doing as Minister for Environment? Are any of the thematic areas not already being engaged in by divisions of the Ministry?

Part III- Department of Climate Change

We now are to have a separate Department of Climate Change. There already is a division for climate change, within the Department of Environment. To which we can add that the Ministry also now has the solid waste management portfolio.

Our comments

From our experience and specially including during the Assises de l’Environnement,

  • the Department of Environment and the Solid Waste Division were not working optimally together.
  • It was also clear that there were not many lines of communication between the ministry responsible for housing and land use and that of environment on domains which concern them both. The creation of a department, the setting up of an Inter-Ministerial Council will not resolve this unless the underlying causes are addressed.
  1. The CC Bill lists 21 functional responsibilities of the proposed Department- which include formulating guidelines, establish procedures, monitoring and reporting mechanisms, promote stakeholder participation, but without any enforceable and compliance mechanism
    • Against these, the only required deliverable for which it can be held accountable is the publication on the Ministry website, of the National Inventory Report on greenhouse gas emission by sources and removal by sink.
    • But the Inventory Report is not required to provide the evidence base over the policy cycle.
  2. For what purpose and to what ends?
    • What is the added value of elevating a division to the status of a Department? Other than being able to access climate finance? (see the part on National Implementing Entity). 
    • It is to be noted that existing climate-change targeted and/or related interventions already benefit from these sources of finance, mobilised by specialised agencies providing both technical and financial support.
  3. At the same time, the Bill is vague on its staffing levels and capacities – “posted to the Department such public officers as may be necessary to assist in the proper discharge of its functions”. 
    • There is no way to hold the Department accountable for this. When we know that understaffing and inadequate capacity is what is routinely mentioned as real constraints to effective delivery.
  4. How will it interface with other Departments, within the same ministry and in other central ministries?
    • The risk is that the other ministries will just consider that CC is the task of a new, more powerful department. It becomes a technical specialist expertise of a specific government Department.
    • In our view, this will reinforce the silo, dysfunctional approach. This is more likely because what underpins the legislation is not disaster risk coupled with climate change, but climate change alone. Disaster risk affects and is affected by other ministries too and this creates the ground for collaborating.
  5. Already at the Assises de l’Environnement, three main obstacles to meeting the 2030 Agenda for Sustainable Development and building resilience to disaster risk in the context of the climate emergency have been identified: 
    • an overriding focus on Gross Domestic Product as sole measure prioritising economic growth;
    • a silo, compartmentalised approach;
    • a top-down centralised, administrative authority and closed approach instead of an open, participatory, inclusive and capacity-enhancing approach. 
  6. The Wakashio debacle illustrates the failings of such an authoritarian political and administrative culture.
  1. The CC Bill lists 21 functional responsibilities of the proposed Department- which include formulating guidelines, establish procedures, monitoring and reporting mechanisms, promote stakeholder participation, but without any enforceable and compliance mechanism
    • Against these, the only required deliverable for which it can be held accountable is the publication on the Ministry website, of the National Inventory Report on greenhouse gas emission by sources and removal by sink.
    • But the Inventory Report is not required to provide the evidence base over the policy cycle.
  2. For what purpose and to what ends?
    • What is the added value of elevating a division to the status of a Department? Other than being able to access climate finance? (see the part on National Implementing Entity). 
    • It is to be noted that existing climate-change targeted and/or related interventions already benefit from these sources of finance, mobilised by specialised agencies providing both technical and financial support.
  3. At the same time, the Bill is vague on its staffing levels and capacities – “posted to the Department such public officers as may be necessary to assist in the proper discharge of its functions”. 
    • There is no way to hold the Department accountable for this. When we know that understaffing and inadequate capacity is what is routinely mentioned as real constraints to effective delivery.
  4. How will it interface with other Departments, within the same ministry and in other central ministries?
    • The risk is that the other ministries will just consider that CC is the task of a new, more powerful department. It becomes a technical specialist expertise of a specific government Department.
    • In our view, this will reinforce the silo, dysfunctional approach. This is more likely because what underpins the legislation is not disaster risk coupled with climate change, but climate change alone. Disaster risk affects and is affected by other ministries too and this creates the ground for collaborating.
  5. Already at the Assises de l’Environnement, three main obstacles to meeting the 2030 Agenda for Sustainable Development and building resilience to disaster risk in the context of the climate emergency have been identified: 
    • an overriding focus on Gross Domestic Product as sole measure prioritising economic growth;
    • a silo, compartmentalised approach;
    • a top-down centralised, administrative authority and closed approach instead of an open, participatory, inclusive and capacity-enhancing approach. The Wakashio debacle illustrates the failings of such an authoritarian political and administrative culture.
  6. We can see that the overall structure of the bill does not have  a first part, which  addresses the principles, objectives, targets, policies, strategies and actions (Why and what it seeks to achieve). While a second part elaborates on the institutional set up and governance measures to implement them (who is responsible to do it and how it will be done). It plunges straight into the second part.
  7. In fact, some of what should be in a first part is subsumed under the tasks of the Department:
    • For example, human rights and gender “issues” are subsumed and relegated under research.
    • There is no legal requirement, for instance in a first part,to embed gender equality and a human rights-based approach in the policy agenda and which is to frame the decisions of the InterMinisterial Council  and the actions of the proposed Department of Climate Change
    • This is the case despite ongoing project assistance to that effect which the Law does not codify.

Box 5: Gender Assessment and Action Plan in the Ecosystem-based adaptation programme in the Indian Ocean.

There has already been a Gender Assessment and Programme-Level Action Plan in the Ecosystem-based Adaptation in the Indian Ocean Programme.
Under the Green Climate Fund, its accredited agency is the Agence Française de Développement and the executing entity is the Critical Ecosystem Partnership Fund (CEPF).
Source: https://www.greenclimate.fund/sites/default/files/document/fp135-gender-assessment.pdf

Part IV Climate Change Committee

The composition of the Committee reproduces at technical level, what there is at ministerial level. 

  • The difference is the – in effect, token measure – of one representative of civil society and of the business sector. 
  • They are to be nominated by the Minister. 
  • This puts paid to any democratically determined and independent representation of civil society. The provision merely enlarges the sphere of patronage and discretionary power of the Minister.

However, the cumbersome and ineffectual nature of this committee as other such committee is exposed in its responsibilities:

  • If it is a Coordinating Committee, then it can exchange information and monitor on progress made by different sectoral/ministerial entities.
  • But its role is also to give scientific strategic and policy advice. And there is no requirement as to the capabilities and knowledge of members, save for the civil society representative. These two functions of focal point and resource persons are not necessarily either compatible or to be accumulated in one person!

In terms of deliverables, it needs only submit a report of its activities every 2 years!

Part V Climate Change Measures

Our Comments 

Sub part A 

  1. The National Climate Change Adaptation (& Mitigation) Strategy and Action Plan is not required to set targets and monitoring indicators, nor a baseline.
  2.  There is no mention of Nationally Determined Contributions.

Section 15: The National Inventory Report

Our comments

This Inventory is to comply with UNFCCC, Kyoto Protocol, Paris Agreement (which also have the specific finance instruments mentioned in the Bill). This section gives powers to collect and keep records on climate-related data from any public and private body, who are required to furnish them.

But,

  1. There is no provision as to the latter’s capacities to do so and this is often the stumbling block in collaborating with mainstreaming functions of the Ministry responsible for environment.
  2. There is no stipulation of the requirement regarding a variety of pollutant sources and environmental assets and resources (section 15.5), fuels, industrial processes etc.  This is left to the discretion of the “Minister who may make regulations as he thinks fit” (our underline).
    1. The scope for influence and lobbying is great and depends on the activism or not of the Ministers in question and the rotation among ministers who do not have to have any specialist knowledge of his/her office.
    1. There is no requirement that such regulations need to go for best available and feasible options for “greener growth”.
    1. Powers of entry are restricted to the purpose of collecting information. And it is not clear how that interfaces with the enforcement attributions of the Department of Environment.

Sub part B Duties and Obligations of Institutions (public and private)

The Director may issue directives to carry out vulnerability and risk assessments, implement the action plan, take into account climate change in its strategies, action plans and other policies, establish units with staff and adequate resources to do so. The language of “promote” and “encourage” in earlier sections now slip into directives.

  1. How will that be linked to the decisions of the Inter-Ministerial Council for the Public Sector? And the advice of the Committee?
  2. How will the capacity be built especially in the private and non-governmental sector and be used, to respond to these policy directives, unless these measures are spelled out and resourced? In other words, how will the climate funds accessed or allocated, be used? The Act is silent on this.
  3. The Department provides policy advice, sets regulations, monitors implementation and compliance. But there is no independent body with the legal and financial backing to ensure that there is compliance both by the Department and the Institutions. 
  4. There is no requirement to report to Parliament as key oversight institution, as to the status of implementation and compliance. It is all left to the discretion of the Minister, whose executive powers are reinforced.
  5. There is no obligation to publish and make accessible all these strategies, policies, measures, implementation reports and hold the Ministry and the Council to account.
  6. Monitoring and accountability mechanisms are weakly provided, if at all.

Sub part C – Reporting and Public Consultation

(18)  Reporting is just for the purpose of reporting to the Secretariat of UNFCCC. It all depends on what “the Minister may, as and when he considers appropriate, direct the Director to provide him and the Secretariat such information and report as UNFCCC may require”.

Public consultation is restricted to the purpose of developing strategies and policies.

  • There is no right to information and no obligation to disclose information regarding climate change.
  • The strategies themselves may be kept under restricted circulation for decades.
  • No stipulation of awareness, sensitisation and capacity building strategies.
  • The whole approach is exclusive, administrative and top-down. The language of stakeholders and partners is absent, let alone notions of climate justice.
  • This legislation reflects the implicit or default policy. Which violates the norms, principles and standards of the Conventions.
    • They are cast as an intergovernmental bureaucracy that the national bureaucracy reports and complies to. It flies against the spirit of international agreements.
  • There is no focus of making climate finance independently available to climate justice civil society organisations.
  • In such a secretive environment, trust is eroded and the risk of lobbying and corruption is increased.

Part VI- Application of the Act to Rodrigues

  1. There is no mention of our other islands such as Agalega and the Chagos, which are very exposed and at risk of climate change. See Box 7.
  2.  In fact, the awareness of what climate change may mean for what is a collection of scattered islands over a vast Exclusive Economic Zone and how it affects different ecosystems differently is barely acknowledged.

Part VII Miscellaneous

(24) National Implementing Entity

Our comments

It turns out that it is the Ministry which acts as a National Implementing Entity to access finance under the Adaptation Fund Board or the Green Climate Fund. So the purported need for a separate Act – which is not integrative – to set up a Department, is not really demonstrated.

(25) Enforcement

The above point is underscored in that any of the officers in the Ministry ad others in the Forestry Service, the National Parks and Conservation Service can act to enforce within the limited scope of this Bill.

(26) Protection from Liability 

As usual, the Ministers and all those given powers of decision and execution in public office are exempt from liability.

They are also however not accountable.

  • Because the Bill does not specify the bodies to which they are answerable.
  • UNFCCC obligations are non-binding, except in so far as being able to access finance.
  • But the problem is not so much being able to access, as to be diligent in disbursing in a timely and streamlined way and effectively. Project and programme management is weak and translates into weak coping and adaptive capacity. The Act reflects that, as it does not codify the progress made so far. It also does nothing much to alter it.

(27) Confidentiality

In the secretive environment spelt out under Sub Part C, such confidentiality can be invoked to frustrate transparency. Unless there is whistle-blowing and “leaks”.

(28) Offences

A punitive approach dominates without any compensating capacity strengthening and enabling policy environment conducive to raising awareness about climate change and its implications.

(29) Regulations

The arbitrary regulatory powers of the Minister have been dealt with already.

(30) Consequential amendments

The series of amendments proposed show how the legislation is hybrid: The National Environment Fund is now also a Climate Change Fund. It merely makes it more explicit rather than accept climate change within the environment domain.

The whole environmental policy approach using the Environmental Impact Assessment (EIA) Part of the EPA as a vehicle is reproduced.

The strategic failings of the EIA that can just be suspended remain.

Box 6 The failure of the EIA mechanism to take on board environmental concerns.

EIAs are applicable only to future undertakings listed in the Fifth Schedule of the EPA 2002. This means that undertakings lying outside the scope of the Fifth Schedule Part B pertaining to EIAs such as those requiring Preliminary Environmental Reports listed in Part A of the Schedule will not fall under the purview of the Act.
Also, one only has to look at the EPA 2002 (as amended September 2020) to take stock of how easy it is to delist major infrastructural projects from that Schedule, including in Agalega which as a low-lying island is particularly vulnerable to climate change impacts.
There is no provision in the Bill to require the private sector to demonstrate that its existing and proposed policies, strategies, plans and activities are climate-proof.

The policy approach has not been revamped following the maturing of separate projects and the new generation of policy and strategy proposals of the Assises de l’Environnement (See Box 4).

In addition, as PML members attending the Assises, as well as advocating using the area-based Strategic Environmental Assessment as key environmental management and land use planning instrument, we proposed to adopt a climate proofing approach.

Box 7: What is climate proofing?

Climate proofing is a shorthand term for identifying risks to a development project, or any other specified natural or human asset, as a consequence of climate variability and change, and ensuring that those risks are reduced to acceptable levels through long-lasting and environmentally sound, economically viable, and socially acceptable changes implemented at one or more of the following stages in the project cycle: planning, design, construction, operation, and decommissioning.
Source: Asian Development Bank

There is no mention of the National Disaster Risk Reduction and Management Act. Which itself was little used in the Wakashio environmental and ensuing socio-economic catastrophe. It could have been used to prevent pollution damage rather than react after an oil spill. Perhaps it is so as disaster was mainly seen in the form of cyclone and flooding damage. Yet, if as is anticipated with the climate emergency, severe weather events can be linked to human-triggered disasters such as wrecks. It is not certain at all that the Climate Change Bill has set up the legal framework for anticipatory adaptive and mitigating capacity.

We believe strongly and urge that this Bill goes back to the drafting board. We would welcome a participatory and inclusive process of following through the first Round of Workshops of the Assises to engage in this exercise and to include other ministries in a comprehensive manner.


[1] https://reliefweb.int/sites/reliefweb.int/files/resources/WorldRiskReport-2018.pdf.

https://reliefweb.int/report/world/worldriskreport-2020-focus-forced-displacement-and-migration
The higher the rank, the higher the risks.

[2] International Parliamentary Union (2017) Global Trends in climate change legislation and litigation, 2017 Update http://archive.ipu.org/pdf/publications/global.pdf

[3] The target was to reduce GHG emissions by 30% by 2030 in the mitigation component  https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Mauritius%20First/Final%20INDC%20for%20Mauritius%2028%20Sept%202015.pdf

[4] https://www.legislation.gov.uk/ukpga/2008/27/contents

[5] https://www.climatechange.vic.gov.au/legislation/climate-change-act-2017

[6]  https://reliefweb.int/report/mauritius/reducing-climate-change-and-disaster-risk-mauritius

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.