Caribbean Style

A Court of Appeal ruling in the case involving the Virgin Islands Environmental Council (VIEC), the Attorney General and the Beef Island project developers, Quorum (BVI) Ltd may have far reaching implications for parts of the Territory designated as 'protected areas'.

The VIEC stated their satisfaction that the Court of Appeal judgment handed down on August 12, upheld the finding that the judicial review could have proceeded even though it failed to join the Minister of Planning as a defendant.

However, the advocate group expressed disappointment by the finding that Hans Creek is not legally a protected area. This, according to the group, has numerous negative implications.

"It effectively invalidates the entire fisheries protected area system in the BVI; it means that none of the 14 designated as fisheries protected areas in the Fisheries Regulations 1997 are protected areas under the law," the VIEC pointed out.

The group pointed out that the ruling also "undermines confidence in legislation for environmental protection in the BVI, as it seems to suggest that the Government's legislative drafting skills are so poor and ineffective that the laws are not worth the paper they are written on".

"The Government's arguments in the High Court that the law was ineffective also suggests the Government will not uphold a protected area designation if it suits its purposes not to do so....it re-iterates once again that environmental justice and access to justice, while worthy of pursuit, are very difficult to attain," the VIEC stated.

VIEC does not accept the Court of Appeal´s finding that Hans Creek and the other designated areas are not protected by law. Even so, as a matter of urgency, the VIEC plans to call on the Government to correct this potential weakness in the Virgin Islands´ protected areas system. 

As the VIEC Director, Dr. Quincy Lettsome notes that this weakness is a dangerous threat to the beauty of the Virgin Islands and what is referred to as Nature's Little Secrets.

The group noted that the finding that the Hans Creek Protected Area would suffer a negative environmental impact from the development was never challenged at the Court of Appeal. According to the VIEC, it is accepted that the project in the approved design cannot possibly be built without this negative impact, which is purportedly against the
law.

What was challenged was the validity of the protected area status and the identity of the person named as the defendant. There was no challenge to the environmental facts.

The VIEC said they are awaiting the written copy of the judgment. Once this is received, their legal team, which could not be in attendance due to the short notice of the judgment delivery, will consider the grounds for further appeal.

The legal challenge began in July 2007 when VIEC, a group of concerned fisher-folk residents and scientists, filed an application in the High Court seeking judicial review of the January 2007 decision by former Chief Minister and Minister for Planning, Hon D. Orlando Smith, granting planning approval to Quorum Island BVI Limited to construct a hotel, marina and golf course on Beef Island.

On January 13, 2011, attorneys for the VIEC appeared before the Justices of the Court of Appeal to defend the decision of Justice Indra-Hariprashad Charles reversing the planning approval for the project. The hearing took place during the January 2011 sitting of the Court of Appeal on Tortola, BVI.

Mr. Stephen Hockman QC, Head of Chambers at Six Pump Court, London and his colleague Mr. Mark Beard represented the VIEC.

Mr. Gerald Farara QC of the BVI firm Farrara Kerrins represented the appellant, Quorum Island (BVI) Ltd. The Solicitor General, Mrs. Joanne Williams-Roberts represented the Attorney General for the BVI Government, who was named as 2nd Defendant in the appeal.

The VIEC has always argued that the golf course and marina were located next to and partially within the Hans Creek Fisheries protected area.

Quorum had made two applications to the Planning Authority - a master plan application for which they sought "outline permission" and a detailed application for construction of the golf course, for which they sought full approval.

During the court hearing in the High Court, it was pointed out that Dr. Smith's letter did not specifically indicate for which of these applications permission had been granted.

In the judgment delivered on September 21, 2009, Justice Hariprashad-Charles found that the proposed project will, in part, involve development within the Hans Creek area.

Section 51(1) of Fisheries Regulations 2003 states that "no person shall carry out any development activity, whether terrestrial or otherwise which may or is likely to adversely impact on a marine protected area declared as such by the Minister by Order in the Gazette".

In Regulation 15(5), fourteen areas including Hans Creek were declared to be fisheries protected areas.

Justice Hariprashad-Charles decided that the Minister for Natural Resources was entitled to declare Hans Creek a Fisheries protected area by way of regulation.