BAHAMAS-INSPIRED ENVIRONMENTAL CASE COMES TO TRIAL
A landmark environmental case in the British Virgin Islands, that was inspired in part by the Save the Guana Cay Reef action in the Bahamas, will be heard in the Virgin Islands High Court from 27th - 29th April 2009. The case Virgin Islands Environmental Council v Attorney General and Another sets a precedent in the BVI as the first environmental and public-interest challenge to a government decision. It involves judicial review of the former NDP Government’s planning approval for a 5-star hotel, marina and golf course that would destroy the scientifically documented biologically important Hans Creek Fisheries Protected Area in Beef Island, British Virgin Islands. Legal issues in the case center around the irrationality of the decision in light of an over-arching “Development Agreement” which pre-approved many of the project components, and the illegality of project approval in blatant contravention of the Fisheries Law prohibiting development that would adversely impact a fisheries protected area.
The case is being fought by the Virgin Islands Environmental Council (VIEC), a coalition of local fishermen, concerned residents, scientists and environmental activists. The politically charged issue came to a head during an election year. When local lawyers refused to assist, the group reached out to Mr. Fred Smith, Freeport attorney for Save Guana Cay Reef, who was the first attorney to give the group a legal opinion on the merits of their case. His timely encouragement and advice enabled VIEC to file their claim against the decision within the six-month time limit for bringing judicial review. This advice was crucial because compliance with the limitation period was challenged as a preliminary point up to the Court of Appeal of Eastern Caribbean States. In November 2008 the OECS Court of Appeal handed down a ruling upholding the decision of Justice Olivetti in the BVI High Court that the application for leave “commenced” an action under the new Civil Procedure Rules. Therefore, the claim was filed in time and the case could proceed to trial.
Due to numerous other commitments, Mr. Smith was unable to provide further legal assistance. Fortunately, the VIEC through the efforts of its legal director, Mumta Ito, was able to secure the services of London counsel, Mr. Stephen Hockman QC, former Chairman of the UK Bar Council and previous Chairman of the Environmental Law Foundation. The case has received international attention and acclaim, including the support of Sir Richard Branson, owner of Virgin Atlantic Airways and Mosquito and Necker Islands in the BVI. Sir Richard provides discounted flights on his airline for the legal team flying in from the UK. Funding the legal action, however, continues to be a major challenge. In this regard, the VIEC has been fortunate to receive the assistance of the Cambridge-based Ocean River Institute (ORI) a registered US Charity that provides support services for small environmental groups to take action in their own communities. In addition to raising tens of thousands of dollars to cover legal expenses, ORI has been instrumental in raising awareness around the world including an international petition with over 18,000 signatures and letters from individuals in support of the VIEC.
Save Guana Cay Reef and the Beef Island case are just two Caribbean island examples of a world-wide phenomena - the struggle of local peoples and small land-owners against the powerful alliances of unscrupulous developers and politicians and their mega-resort and real estate development projects with the enormous problems they cause for society and the environment. To borrow the words of the 2009 Declaration of Belem made at the World Social Forum in Brazil, these legal cases represent “the legitimate expression of struggle and resistance by communities against the current conventional unsustainable model of tourism and speculative real estate development.” They represent a struggle to promote tourism models that value ecosystem survival, local communities, traditional culture and the way of life.
During the April 27 - 29 hearing, it is expected that novel areas of law will be judicially considered that will affect the future of sustainable development, planning policy, and the status of protected areas in the BVI and throughout the Caribbean. Whatever is decided is likely to be appealed, and the legal struggle to Save Beef Island is expected to continue through the Virgin Islands-OECS court system right up to the level of the Privy Council.
Noni Georges
Also see this link here for the active discussion in the British Virgin Islands from NONI's letter here "In defense of Beef Island"
