In the Court of Appeal today Lord Justice Laws issued an unprecedented rallying cry for the courts to give environmental interests "special weight", in a world "disturbed by human activity, which in particular threatens the survival of many flora and fauna." However, a disagreement between Lord Justice Laws and two other Court of Appeal judges emerged today as Greenpeace lost its judicial review of the Government's failure to stop shipments of mahogany banned by Brazil from entering the UK market.
In deciding the issue the three Court of Appeal judges said that the law was ambiguous and that they had a choice between rival arguments: Greenpeace's position, which gives precedence to the interests of the environment, and the Government's position, which was that the interests of commerce and trade, even trade in endangered species, were more important.
Although Greenpeace lost the case on a majority ruling, Lord Justice Laws, in a strong dissenting judgment, upheld Greenpeace's case and made an historic appeal for the interests of the environment to be given special weight by the courts in the face of "the damage done by man's exploitation of nature's resources."
Lord Justice Laws said:
"In the century before last, the sanctity of contract, with all that said for trade across the British Empire and beyond, was a powerful engine of statutory construction. Now, the world is a more fragile place. Considerations of ecology and the protection of the environment are interests of high importance. The delicate balances of the natural order are continuously liable to be disturbed by human activity, which in particular threatens the survival of many flora and fauna. These concerns are today well known and well accepted. Within the proper limits of the courts' role, and in appropriate contexts, I think we should now be ready to give them special weight.
"The Convention, though certainly it seeks to support viable international trade, is first and foremost intended as a legal antidote to some of the damage done by man's exploitation of nature's resources. That purpose must, in my judgement, serve as the most influential factor in the interpretation of the Regulation."
In contrast, the other two judges took the view that "commercial certainty" for the purposes of trade was a more important consideration than whether permits for the lawful exploitation of endangered species were "incorrectly" or "correctly" issued. According to the majority in the Court of Appeal, in an "imperfect world", the need for "certainty in commerce" was a policy consideration taking precedence over the need to ensure the strict control of trade in endangered species.
Responding to the result, Greenpeace Campaign Director, John Sauven, said:
"We are appalled that the UK Government argued for a result that will allow a corrupt mahogany mafia to profit from trade in Amazon destruction, even as other EU countries have taken action to stop mahogany imports. A Government supposedly committed to curbing the illegal timber trade should be ashamed that it has instead fought for a result that will allow this trade to flourish. This is a terrible outcome for the future of the Amazon rainforest."
Greenpeace first alerted the Government to shipments from Brazil on 31 January 2002, after its investigations revealed that two cargoes of Brazilian mahogany were heading for the UK - despite a complete ban on mahogany logging and export having been imposed by the Brazilian Government last year [1]. The ban followed official investigations in Brazil that revealed that at least 70% of mahogany was being logged illegally.
In court lawyers for Greenpeace argued that the Government's decision not to seize a cargo of Brazilian mahogany, imported to the UK during March, contravened the UK's commitments under CITES (an international treaty designed to control the trade in endangered plants and animals [2]) and the EC Regulation law implementing CITES in the European Union. In sharp contrast to the UK Government's position, a number of other EU countries, including Germany, the Netherlands and Belgium, have all seized mahogany shipments arriving on their territory. The USA and Canada have also seized mahogany shipments.
An initial application for a judicial review of the decision was turned down by the High Court on 26 February 2002, however on 25 March 2002 the Court of Appeal gave permission for the judicial review to proceed in that Court.
The CITES Secretariat in Geneva and the European Commission have advised all governments not to allow Brazilian mahogany imports at the present time. Only the UK has resisted this advice.
The mahogany ban is part of a concerted effort by Brazil's environment agency (IBAMA) to shut down the "Mahogany Mafia", which largely controls the illegal mahogany trade in Brazil. On 21 February 2002, as part of the clampdown, IBAMA launched "Operation Rescue" and seized US$25 million worth of the rare wood from a site deep in the Amazon. Legal proceedings were instigated in February against various members of the "Mahogany Mafia" in the Amazon, as part of the attempt by the Brazilian authorities to put a stop to the loggers' destructive activities [3].
On 9 April 2002 President Cardoso of Brazil said on Brazilian national radio: "Despite various restrictions that IBAMA has imposed in recent years to prevent the cutting of mahogany in prohibited areas, the guidelines have been ignored. Unscrupulous loggers have felled trees in illegal areas and transported them clandestinely to other zones where their handling is permitted. During this dispute, entrepreneurs and loggers managed to gain legal authorisations that conflicted with the national interest in preserving mahogany."
A damning report on the UK Government's role came yesterday from the House of Commons Environmental Audit Committee. In relation to CITES it said: "Inconsistent interpretation of CITES undermines the Convention's credibility, as well as the UK's profile as a leading force against illegal logging. If the UK were to come to be seen as the weak link in the EU chain of CITES controls, there is a risk of an even higher proportion of illegally logged timber entering the EU through UK ports."
For more information please contact Greenpeace Press Office on 0207 865 8255 or John Sauven on 07929 638296
Read the background briefing.
Find out more about the Save or Delete campaign.
[1] The ban on the mahogany trade was imposed through IBAMA Decree No. 17 of 19 October 2001. The banning of mahogany logging in three Amazon states (Para, Mato Grosso and Acre) was imposed through Decree No. 22 of 5 December 2001. Translations of both Decrees are available from Greenpeace.
[2] CITES stands for The Convention on International Trade in Endangered Species. Mahogany is listed under CITES Appendix III to prevent its "unsustainable or illegal exploitation": see www.cites.org.
[3] For example, Judge Marcia Murrieta, from the Tribunal of Justice of Pará State, accepted the request of the State Prosecutor of Altamira and has opened a legal case against 12 of the loggers, all of whom the prosecutor referred to as the "Mafia do Mogno" (Mahogany Mafia). Judge Murrieta's decision, dated 22 February 2002, was announced on 25 February in Altamira, Pará State. This is not the first time that loggers have faced legal charges, but it is the first time that a judge has accepted an accusation against loggers based on the "formacio de quadrilha" - the Brazilian equivalent of the US RICO Act, which was designed to stamp out organised crime.
