Highlights of comments on Climate Change Bill No. XIV of 2020

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This brief article highlights the key messages of Comments made under each part and section of the Climate Change Bill. The full comments can be consulted here: https://mauritiuscoastalzones.blog/2020/11/09/comments-on-climate-bill-no-xiv-of-2020/

This Bill is far from being the fruit of consultations as claimed by the Minister for Environment, Solid Waste and Climate Change in presenting it. It is being rushed through, in a top-down manner. NGOs, who have been collaborating at the Assises de l’Environnement between January and March 2020, are then reduced to criticising it. None of this work has folded into the drafting of this bill. 

It is a hollow piece of legislation, both premature and overdue. 

It lacks in ambition, substance, concrete purpose and direction. 

It focuses mainly on who is responsible for doing what. 

It is not about giving a solid, overarching, integrative and binding underpinning to what and how to achieve adaptation and mitigation and build resilience in the face of the climate emergency. 

Explanatory Memorandum. 

Apart from stating that it is mainly to comply with reporting obligations under the UNFCC, the Kyoto Protocol, the Paris Agreement and other instruments, it does say that its objective is to “make Mauritius a climate-change resilient and low emission country” and a “greener economy”.

However, the draft does not provide for meeting these objectives 

There are no clear time-bound targets. 

Unlike other fit-forpurpose legislation, obviously not benchmarked, there is no directive to establish a baseline from which to move towards the target. 

It is a missed opportunity to shape, direct and drive all development orientations. 

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

There has been a climate change bill in existence since 2012, as well as maturing policy frameworks, strategies and actions - most of which have accessed climate finance instruments for a while. 

The Bill does not reflect any of these. It is being passed in the absence of a climate change policy, strategy and action plan that it can give legal force to, in substance. 

It says nothing about Nationally Determined Contributions, which in 2015 set mitigation targets for 2030. 

“Greener growth”? 

It does not provide 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. 

“Greener growth” involves a paradigm shift, not facilitating business-driven and business as usual plus a bit of mitigation and adaptation. 

The Bill is also not based on a policy framework which explicitly recognises that a climate resilient approach has to be coupled with a disaster risk approach – economic, social, ecological. 

There is no mention of Agenda 2030 and the Sustainable Development Goals, Sendai Framework on Disaster Risk, 2015-2030. They would have provided the norms, the standards, the policies underpinning the legislation and building the basis for inter-ministerial, intersectoral, public-private collaboration at all levels. 

In particular, it makes no mention of ecosystem-based solutions as well as a gender and human rights-based approach to permeate human actions. 

So, unlike other climate-related legislation, strong on substance and outcomes (why, what and what for and when), this bill is about the process (who in authority and what process) 

instituting departments and committees, mechanisms for data collecting, monitoring and reporting, provisions for compliance to fiduciary standards for accessing climate finance. 

We highlight here our main comments on each part. 

• Part I Preliminary: 

There are missing definitions - which need to be harmonised with other pending legislation. 

• Part II Inter-ministerial Council on Climate Change 

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

Apart from the Minister for Environment, it duplicates the National Environmental Commission, as per the Environmental Protection Act of 2002! 

We therefore have separate inter-ministerial bodies to oversee and set the agenda in what are inter-related and overlapping domains. 

What is there in the Powers of the Minister that adds on to what s/he is and should already be doing? 

• Part III- Department of Climate Change 

We fail to see what this proposed department will add of value that is not already being done as a division. 

Our experience with working in the Assises confirms that some existing entities within the Ministry do not work well together. The lines of communication between the Ministry and other key ones, such as the Ministry of Housing and Land Use Planning – currently elaborating a rather opaque update to the National Development Strategy - are also tenuous. 

We fear that the risk is great that the new enlarged Department with stronger powers and mandates will reinforce the silo mentality. It will exacerbate the possible underlying causes of non-cooperation and fail to embed a climate-proofing culture in all institutions. Which the Bill does nothing to address. 

• Part IV- Climate Change Committee 

The token nomination of civil society – and business - members just reflects how exclusive and non-participatory climate governance is envisaged. 

This committee may be ineffectual in its roles: It can engage in administrative coordination among government. But there is nothing in the Bill that stipulates that its members have the capacity to deliver scientific and policy advice - except for the sole civil society representative. 

The Committee is only accountable to submitting a report every 2 years. 

• Part V- Climate Change measures 

It provides for a National Climate Change Adaptation (& Mitigation) Strategy and Action Plan which is however not required to set targets and monitoring indicators, nor a baseline. 

• Section 15: The National Inventory Report 

There are no provisions as to the capacities to do so all along the information and reporting chain. 

The Minister “may make regulations as he thinks fit”, a discretionary power that opens the door for influence and lobbying and for not acting. 

There is no requirement that they be bound by best options for “green growth” nor that the data is used as an evidence-base to drive and monitor policy and actions. 

• Duties and Obligation of Institutions. 

There is no provision for building capacity, nor for oversight of the Department or the Ministry, especially Parliamentary Oversight. With a weak scope for legal review. 

The monitory and accountability mechanisms are weak (especially when considering protection from liability and confidentiality (sections 26 and 27). 

• Reporting and Consultation 

There is no requirement for transparency and accountability to the people of Mauritius, save in consulting only when developing strategies and policies. 

• Consequential amendments 

Basically, the piecemeal, incremental, permissive businessdriven approach enshrined in the EIA in existing legislation (EPA 2002) is carried through. 

While the Assises de l’Environnement calls them in question and proposes new generations of instruments and policy approaches which addresses the broader implications of complex disaster risk and management. 

The Wakashio debacle illustrates the failings of such an authoritarian, opaque political and administrative culture, as well as a reactive, piecemeal one. 

We see no basis to have a new bill, as currently crafted. In any case, it just modifies but does not supersede existing ones. We would prefer that current legislation reduces the provisions which enable the authorities to effectively hollow out them out, against their own mandates. 

We thus urge that this Bill on the Order Paper for the Parliamentary Session on Tuesday 3rd November go back to the drawing board. It should have been a landmark, robust, enabling piece of legislation. It certainly is not that!

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