Virgin Islands Environmental Council
September 25th VIEC court case update
Letter to the Editor in the BVI Standpoint on the court case
Article in the BVI Beacon on the Court hearing
The court reserved judgment which means it will be a few weeks or months before we get the ruling.
The defendants (AG and Developer) asserted that our case is statute barred because the Public Authorities Protection Act says 2.(a) the action, prosecution or proceeding shall not lie or be instituted unless it commenced within six months next after the act ... complained of.
In their view the word "action" should be interpreted to mean only when the action encompasses the two parties and that the plaintiff (our) approach to the courts to get permission to bring a claim for judicial review did not fall in the definition of action because although it involved a judicial decision and engaged the judicial system, the defendant had no notice of its commencement. The consequence being that our application did not stop the clock and our claim form filed a month later was irretrievably out of time.
The defendants went around in this circle a few times but that's the gist of it.
When Farara (for the Developer) started his presentation, the President interrupted and said that they had had time to read ALL the skeleton arguments and materials and they did not need an extended presentation, only highlight those points he wanted to make sure their attention was drawn to. The Judges then circulated an excerpt from the interpretation section of the Supreme Court Act which defined the words being challenged and asked some him pointed questions. Farara conceeded that the application for permission fell within the meaning of the word "proceeding" but refused to accept that "proceeding" could be subsumed in the meaning of action within s.2(a) of the Public Authorities Act.
The judges noted with some humour that Farara's assertion that applications for judicial review should be given a new file number from the Registry when they were approved to go forward was not the practice in any Caribbean jurisdiction in which they served.
The AG's office sent a new senior crown counsel. It was her first time before the court of appeal.
Our legal teams remains optimistic that the ruling will be in our favour. Mr. Hockman in his presentation agreed that our case would fall within the definitions circulated by the bench.
VIEC seeks audience with House of Assembly PDF of an article from the STANDPOINT May 14th, 2008
Beef Island. The court case has been pushed back by the courts to later on, and the trial may not happen before the court takes it's summer break, so that is good in that there is more time to raise the money! The VIEC, has made a very good start raising money for this cause, and was on both the radio and TV in the last week talking it up where good money was raised. Additionally, the VIEC has raised donations from a Welsh Charity, A US Charity and a private individual who comes to Beef Island yearly, and has a foundation that he funds himself, and has offer matching funds! This is all very exciting, but there is a long way to go.
Also, according to this article in the BVI Property Guide, they are redoing the master plan to possible exclude the golf course. Here is a link to a PDF copy of the article
VIEC has put out a new short information flyer for handing out on the Environmental Court Case. Read it here. The court today at 11 AM handed down some technical decisions on the case, which were in favor of the VIEC, which is a round one win. Link to PDF of Full rulingMarch 10th, 2008 UPDATES
Press Release- March 10th, 2008
From: Virgin Islands Environmental Council
To: All interested parties
*Victory for VIEC in the recent court hearing between Virgin Islands Environmental Council and The Attorney General, and Quorum Island (BVI) Limited*
On March 7th, 2008 Judge Rita Joseph-Olivetti found in favour of VIEC, defeating the allegations of the developers and government that VIEC's claim for judicial review is time barred. The date for the full trial is now set for May 14th, 2008. In handing down her decision, Justice Joseph-Olivetti poignantly said, "As we become more aware of the overwhelming imperative to live in harmony with nature, more scrutiny is being given by ordinary people to governmental decisions to allow development in areas with perceived fragile ecosystems; the cry for governmental accountability and sustainable development resounds in the lands and the aid of the courts is increasingly being sought throughout the world, so too in the British Virgin Islands. The primary issue before me is ostensibly a simple one .... However, what lies beneath is the Claimant's concerns with the impact on the environment of a proposed multi-million dollar development at Beef Island, in the naturally spectacular British Virgin Islands billed by the BVI Tourist Boards as "Nature's Little Secrets"."
The legal issues raised at this hearing were judically considered for the first time in the Caribbean and mark an important clarification of the law for judicial review litigants.
In awarding VIEC recovery of costs, the judge looked favourably on the fact that it is a non-profit organisation that is litigating in the public interest.
VIEC's fundraising is going strong, with over $10,000 raised in the last two weeks, however there is still a substantial shortfall in financing the upcoming trial on May 14th, 2008.
This is the first ever environmental case in the BVI and the outcome will affect development law and policy througout the Caribbean. VIEC encourages everyone who has an interest in the environment and the British Virgin Islands to donate today and help us make Caribbean and BVI history.
March 13th Beacon article on VIEC courtcase
Standpoint article on VIEC courtcase, March 13, 2008
Link to article in Newspapers Feb 28th, on court cases
Feb 23rd, 2008 UPDATE
In July 2007 the Virgin Islands Environmental Council initiated legal action seeking judicial review of the BVI Government’s decision to grant planning approval to the Beef Island Development Project. This project involves the creation of a golf course and marina in an area proclaimed by law to be a protected area. The purpose of the action is to protect the Beef Island wetland ecosystem and in particular the Hans Creek protected area from certain destruction if the project goes forward as planned. These ecosystems have been recognised by international scientific studies as being of international importance and have been included in the BVI National Parks Systems Plan for over 25 years. Despite attempts to mitigate the effects of the development, the Planning Committee were unable to lawfully conclude from the evidence taken as a whole that there would be no adverse impact to the ecosystems in question. Furthermore, the correct procedure for approving planning applications under the Planning Act, which is in place to safeguard the public from the effect of destructive projects, was not followed.
The Government, in its approval letter, acknowledges that the project is certain to cause destruction of the entire ecosystem of Beef Island. As we are aware, due to the inter-related nature of life on earth, even small changes in one ecosystem can have huge knock on effects globally. Through taking legal action VIEC is ensuring that the natural resources of the BVI are preserved for the benefit of future generations, that the Government adheres to the procedures set out in our laws when granting planning permission, and that the people have a voice when it comes to environmental issues that affect every citizen’s wellbeing. If VIEC win, the most favourable possibility is that the Government may reacquire the land and declare the critical areas as national parks leaving the remainder available for sustainable development. A less favourable, but still positive possibility is that the Developer will be directed to go back to the drawing board and re-submit a development proposal with a more reasonable level of social and environmental impact.
Losing the case would mean that not only have the people of the BVI exhausted all avenues available to keep this project from going ahead, but also that a dangerous precedent will be set with regard to the status of protected areas, the implementation of planning policy and the importance of sustainable development in the BVI. The decision to grant planning permission also highlights a number of administrative irregularities which, if allowed to go unchecked, would effectively place the BVI government above the law. An order was passed by the previous government that would allow for all developments over the value of USD10m to circumvent the usual planning process and be referred directly to the Premier for approval. This means that unless the people make a stand, the law can be used to legitimise development agendas that may not prioritise the protection of our natural resources for future generations.
VIEC has brought this case through the dedication and generosity of a team of lawyers from abroad, currently spearheaded by Stephen Hockman QC, Head of 6 Pump Court Chambers in London and the former Chairman of the UK Environmental Law Foundation. VIEC is currently seeking to raise at total of USD21,000 to reimburse the lawyers for the previous successful hearings and also to cover the cost of flights and accommodation for the legal team for the upcoming trial which is scheduled for 14 May 2008. The lawyers will attend the trial in BVI on condition that VIEC covers their expenses. We are appealing to your generosity to ensure that this case goes to trial.
Mr Hockman is one of the most respected environmental lawyers in the world and he has provided us with a very positive opinion on VIEC’s prospects of winning at trial. If you are seriously interested in assisting VIEC with substantial funding and would like to find out more about the prospects of winning, we are happy to put you directly in contact with Mr Hockman or a member of his legal team.
Link to FULL WORD DOCUMENT ON FUNDRAISING
Feb 6th, 2008 UPDATE
VIEC has set up a bank account to receive checks, and wire transfers. Donations DO not have to be large, every $5.00 helps the cause! Checks should be made out to Virgin Islands Environmental Council, and they can be mailed to the address below. If you are on island, you can leave checks at the Charter Yacht Society office at Village Cay and someone from VIEC will pick them up. If you would like wire transfer information, please send an email to US and we will be happy to give them to you.
ANY small amount of donation is greatly appreciated, and because of the banking laws here for residents of the BVI, is it not possible to set up a PAYPAL account to receive money. Promenade has generously offered to accept donations into their PAYPAL account to be handed on to the VIrgin Islands Environmental Council Court Case.
You do not have to have a PAYPAL account to send money by credit card or other means. Simply go to PAYPAL Click on the button that says "send money" and follow the instructions. You will be sending money to promcruz@surfbvi.com for the account, and please clearly put in the information line that it is for donation to VIEC and BVIHCG. Additionally, please let us know if you would like to remain annonymous or not. Thank you
This is a ground breaking case, being the first one in the British VIrgin Islands, and we NEED your help to keep it going.
VIRGIN ISLANDS ENVIRONMENTAL COUNCIL
49 Main Street, Road Town, Tortola, British Virgin Islands
December 24, 2007
To whom it may concern,
In July 2007 the Virgin Islands Environmental Council initiated legal action seeking judicial review of the BVI Government’s decision to grant planning approval to the Beef Island Development Project which involves the contentious creation of a golf course and marina. The purpose of the action is to protect the Beef Island Wetland Ecosystem and in particular the Hans Creek Fisheries Protected Area from certain destruction if the project goes forward as planned. These ecosystems have been recognized by international scientific studies as being of international importance and have been included in the BVI National Parks Systems Plan for over 25 years. Despite attempts to mitigate the effects of the development, the Planning Committee were unable to conclude from the scientific reports that there would be no adverse impact.
Winning the case would mean that the deleterious effect of the high volumes of poisonous chemicals that would be used to maintain the golf course on the surrounding air and water and the destructive effect of excavating the salt ponds, which are likened to the “kidneys” of the land, may be prevented. The Government acknowledges that the project is certain to cause destruction of the entire ecosystem of Beef Island. Through taking legal action VIEC is ensuring that this highly destructive project will not be able to go forward in its current form. At best, the Government may reacquire the land and declare the critical areas as national parks leaving the remainder available for sustainable development. At worst, the Developer will have to go back to the drawing board and re-submit a development proposal with a more reasonable level of social and environmental impact.
Losing the case would mean that not only have the people of the BVI exhausted all avenues available to keep this destructive project from going forward, but also that a dangerous precedent will be set with regard to the status of protected areas, the implementation of planning policy and the importance of sustainable development in the BVI. The decision to grant planning permission also highlights a number of administrative irregularities which, if allowed to go unchecked, would effectively place the BVI government above the law. An order was passed by the previous government that would allow for all developments over the value of USD10m to circumvent the usual planning process and be referred directly to the Premier for approval. This means that unless the people make a stand, the law can be used to legitimize development agendas that may not prioritize the protection of our natural resources for future generations.
To date, the VIEC has been self-represented through its volunteer staff. However, at this point the size and complexities of the case require the assistance and resources of more experienced counsel specializing in environmental and planning law. VIEC has identified Stephen Hockman QC head of chambers at 6 Pump Court and one of the top environmental and planning lawyers in the UK to represent us in this case. I am hereby soliciting your assistance to meet the discounted expenses of his team, including travel and accommodation which we envisage to be in the region of USD25,000. Mr Hockman has reviewed the case, advises that we have a strong case and “sees no reason why we shouldn’t win”. Having Mr Hockman represent us would place VIEC on an equal footing before the court with the Government and Developers who have the Attorney General and Mr Farara QC representing them respectively.
Further details on the VIEC, and the background to the Beef Island Case are attached for your information. I sincerely hope that you will be able to make a contribution towards preserving this critical natural resource in the interest of all the people of the BVI. Any contribution, large or small, will be greatly appreciated.
Dr. Quincy Lettsome,
Director
Virgin Islands Environmental Council
Tel: (284) 495 2250
Fax: (284) 49* ****
Email: drqlettsome@hotmail.com
Update from the BVI Beacon Nov 30th on the VIEC motion against the Attorney General on the development on Beef Island
Golf course stalled by lawsuit
The first environmental lawsuit in the territory will resume in court next year, delaying plans for the groundbreaking of an $80 million resort and gold course on Beef Island.
In September, the High Court granted the Virgin Islands Environmental Council, a coalition of conservationalists and residents, approval to challenge the Beef Island Development through a judicial review clame against the former Chief Minister's approval of the 5 star hotel, mega yacht marina and golf course.
The next hearing is scheduled for Jan 15 according to documents lodged at the Court Registry, Quorum Island BVI Ltd. the develpment company that joined the proceedings as an interested party in September, was given until yesterday to defend itself from the judicial review claim.
"Obviously it's going to delay our groundbreasking" said Hector Vina, managing director of Interisle Holdings Ltd. Quorum's partner and the project developer for Beef Island. "We were expecting to break ground byJanuary or February but with the possibility of a March trial it could be delayed to the second quarter."
Justice Rite Olivette opened a "trial window" or set aside possible court dates from March 3-5, according to the document obtained by the BEACON.
"That doesn't necessarily mean there will be a trial" Mr Vinas said, adding that Justice Olivetti will decide if there are enough grounds for a trial after the January hearing.
The latest claim order- dated Nov 7 but filed two weeks after at the Court Registry- granted the Attorney Generals office to "file and serve affidavits" of Chief Planner Louis Potter and Cyndi Rolli, a former physical planner for the Town and Country Planning Department who had been responsible for co-ordinating the review of the project among government agencies.
The Lawsuit
The claim for judicial review is based in part on a Fisheries Regulation that states "no person shall carry out any development activity, whether terrestrial or otherwise, which may be likely to adversely impact on a marine protected area." Hans Creek is a fisheries protected area under the law and the VIEC claims that the proposed development at Beef Island "would have irreversible environmental adverse effects on the protected fisheries habitat." The claim, if successful, they said in a statement" would have the effect of rendering the planning approval void for illegality."
"We understand the challenge. We don't think they're correct in the challenge but that's how the system works," Mr. Vina said. "Obviously it's frustrating. We've been moving toward construction but we've had to devote a hell of a lot of time, effort, resources and finances in responding to the challenge."
Richard Courtney De Castro, co-director of the VIEC, declined comment for this article, and Dr. Quincy Lettsome another co-director of the group, could not be reached for comment.
THe Development
Former Chief Minister Dr. Orlando Smith signed and initial agreement with investor Raymond Hung of Quorum Island for the development of the resort in 2005.
Dr. Smith appeared as one of the respondents of the judicial review filed against the government. However, his name has been removed from the lawsuit and "The attorney General will be substituted as the sole respondent." according to the last court order.
In August 2006, Mr Hung sold 50 % of the shares in the Beef Island Development to Interisle Holdings LTD., a consortium made up of the Interlink Group of Puerto Rico and the Fort Lauderdale based Island Global Yachting, a worldwide luxury marina developer.
Groundbreaking?
Mr. Vina of Interisle could not give a date for construction.
"Right now it is very uncertain to say a date" he said, adding that the Beef Island project has the backing of the new government.
"They want development to happen in the islands and they want us to remain in the territory and go ahead with the development," he said, adding that he is waiting for word from government to make a "full fledged presentation."
Byt Mr. Vina- who confirmed that his group has met with Premiere Ralph O'neil and other government officials- was unaware of the details of an upcoming meeting.
According to the developer, the government requested a "full blown presentation" by Nov 30.
Thats this week," he said. "But we don't know for sure who the audience of date is going to be."
Sandra Ward, director of communications for the premiere, said the meeting would have to be held at another date because the "premiere is going off island from Nov 27 to Dec 6 on unofficial overseas travel."
On Monday during an address to the territory, Mr. O'Neil spoke about the project.
"You know what has happened to the Beef Island development proposal," he said.
That matter is before the courts and therefore we cannot discuss that."
Environmentalists are granted judicial review of Beef Island Project
Island Sun, Saturday Sept 15thConcerned BV Islanders are staying true to the promise they made to ensure that Hans Creek is preserved, and are now taking further action to prevent the proposed 5 star development from being constructed.
Now the Virgin Islands Environmental Council (VIEC) which includes the BVI Fisherpersons Association and the Heritage Group after circulating petitions, staging rallies, and making presentations to His Excellency Governor David Pearey, then Chief Minister (Dr. the hon D Orlando Smith), and Leader of the Opposition, Honorable Ralph T. O'Neal have now taken their issue to the high court.
VIEC Directors, Dr. Quincy Lettsome and Mr. Courtney de Castro both informed the Island Sun newspaper that the Court claim was actually filed by VIEC prior to the general elections. According to the Directors the Court granted approval to the Council to challenge the Beef Island Development Project allowing them to bring a claim for judicial review of the former Chief Minister's 31st January decision granting planning approval for the 5 star hotel, mega-yacht marina, and golf course development on Beef Island.
Although much information pertaining to the claim was not divulged, it was disclosed that "the claim for judicial review is based, amongst other issues, on section 51 (1) of the 2003 Fisheries Regulations which provide 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."
The Directors further added that "contravention of this section is a criminal offense and so is aiding, abetting and procuring the same. The Hans Creek Fishing Protected Area is protected by this law and scientific evidence shows that the development of the proposed golf course and marina at Beef Island will have irreversible adverse environmental impacts on the protected fisheries habitat. This in addition to other relevant issues, would have the effect of rendering the planning approval void for illegality. The Planning Act does not override other legislations in the BVI, but provides instead that no development is exempt from meeting the requirements imposed by other laws.
Dr. Lettsome stressed that the VIEC is not against development, in fact he announced that they do welcome developments. However, he said that environmental considerations must be taken into account and the laws pertaining to the environment must be respected and adhered to in order to endure that the environment is left in good standing for future generations.
"What we have done we have challenged the development because it contravenes certain laws pertaining to environment and the area is one of the most unique ecosystems in the Caribbean with fishes, whelks, conch and marine life. It should be preserved as a scientific and recreational area, and therefore as a society we have challenged this development legally"
According to Mr. De Castro the VIEC feels that sustainable development is what the BVI should be aiming for. He disclosed that VIEC is also concerned about the Smugglers Cove development plans.
Update June 16th. Stated that all is quiet on this front until after the election. There has been rumor that a lawyer will be suing the government over approval for this project.
BEEF ISLAND DEVELOPMENT:
Link for the enlarged version of this map with detail
Chief minister stands by Beef Island development. BVI Beacon March 1st, 2007
Coalition forms to oppose development
Two weeks ago, Chief Minister Dr. Smith announced an agreement for the construction of an $80 million resort and golf course on Beef Island. The Chief Minister has said that the project, which is now the largest private investment in the territory, will bring jobs, tourists and tax revenue to the BVI and will be constructed in an environmentally friendly manner.
Meanwhile, a coalition has been formed to oppose the construction of that resort and other multimillion dollar projects in the territory.
The BVI Fisherperson's Association and Concerned Individuals for the protection of Beef Island released a statement announcing the formation of an alliance with the BVI Heritage Conservation Group in order to oppose a proposed developments for Smugglers Cove and Beef Island.
"This coalition stand against these projects as they are not in keeping with good governance and are not in the interests of the people the British Virgin Islands". The group said, citing environmental, social and cultural concerns.
However, in an exclusive interview with the Beacon on February 9, three days before announcing the golf course approval, the Chief Minister maintains his earlier contentions that the Beef Island development will be a boon to the territory.
"The development of Beef Island is part of the overall economic development that this government is pursuing for the Virgin Islands", he said. "First of all, we will see an increase in visitors to the territory. Secondly, we will see an increase in employment, and thirdly, we will see an increase in entrepreneurial opportunities for BVIslanders who are qualified to work in any particular area."
Issues to be resolved
In at November 21 memorandum to the permanent Secretary of the Chief Minister's office marked urgent, chief planner Louis Potter said two major issues needed to result in order for the planning department to continue with the review and recommendations of the Beef Island development.
The first was the future development of the Beef Island airport.
"The most critical issue to be resolved is the request by the BVI airports Authority for areas within the proposed development footprints to be reserved for airport expansion" Mr. Potter's memo said. " If this request is granted, this will render development of the golf golf course unfeasible."
The second issue is the status of Hans Creek, Beef Island, as a fisheries protected area.
The coalition argues that the Beef Island development is "clearly a violation of the law, having a direct impact on Hans Creek, a fisheries protected area under the Virgin Islands fisheries regulations." The fisheries code states that, "no person shall carry out any development activity, whether terrestrial or otherwise, which may or is likely to adversely impact the Marine protected area."
Hans Creek affected?
In the February 9th interview, Dr. Smith acknowledged the excavation of Bluff Bay salt pond to make way for the resort's marina, but said the Hans Creek area would not be affected by the development. " When I say Hans Creek, I'm talking about the creek. They're not doing anything in the Creek." He said. He added, "when I said that the environment will not be effected, it is true that in any development that you do, any kind of development, if you build a house down there, you're going to be affecting the environment, because you're going to be turning the soil. But I'm talking about adversely affecting, you look at all the pros and cons and most of the wildlife are concentrated other points"
Spawning fish.
The coalition argues, though, that Hans Creek has been established as an important nursery were 90% of the fish are spawned, outside of Anegada. "I'm concerned about seabed and seagrass", Sheila Callwood-Schulterbrandt, Fisherperson's Association president, said. "Once that section is destroyed, the habitat will be moved or killed, and there is no fish for the fishermen to catch because there's no place for them to spawn." According to the coalition statement, the Beef Island development can also bring other environmental, social, and cultural problems to the territory. Among them; a significant loss of biodiversity due to the destruction of areas that support migratory local birds;pollution from chemicals for the golf course; and sedimentation from storm water runoff, especially during the excavation of the Bluff Bay salt pond for the construction of a marina.
Environmental damage?
In February, the Chief Minister, reiterated a statement he made last October, that he would not approve any development that would cause unacceptable environmental damage. "When I said that if any of these developments affect the environment adversely, I will not go ahead. That is true. This is why we have looked at development; this is way we taken into considerations all that is said," he said in the interview.
Concerns considered
Dr. Smith said that the project was approved after consideration of the concerns of key agencies and community residents expressed in public meetings. He also said that he had met with concerned members of the public, including the BVI Fisherperson's Association and the concerned citizens group. "I address their concerns," he said in the interview. "I thought they were valid and very adequately addressed by the developer, and that is what the public meetings are for, to express these concerns of them they can be addressed." The chief minister added "At the public meetings in East End, I don't know how many people spoke. But in the one I attended, maybe three or four spoke against the project. Most of the people who spoke to me, spoke in favor of the project." He also explained all the concerns raised in the public meetings were referred back to the developer, who looked at them and made the necessary adjustments. "I am now satisfied after the environmental impact assessment review, which was conducted by independent environmentalists appointed by the developer, and also by one appointed by myself, that the concerns have been answered satisfactorily and that the development is a good development for the BVI." The Chief Minister said.
Issues resolved?
In a telephone conversation, Noni Georges, vice chair of the BVI Heritage foundation, said she thinks otherwise. "These issues have not been resolved. They don't know where they're going to put the sewage," Ms Georges said, referring to a January 31 letter from Dr. Smith to Raymond Hung, the resort's developer. The letter states, "The project has been approved subject to the developer's capacity to identify suitable ocean disposal site for this sewage effluent. Other conditions include; scaling back residential units by 10%; designating an appropriate location for the incinerator; providing adequate parking facilities for automobiles and golf carts; eliminating the proposed outer marina from the master plan; eliminating beach creation in the vicinity of the Little Cay Bay and Hans Creek on the master plan.
Coalition formed
Ms Georges said that the coalition formed to cooperatively organize efforts, to gather documentation, and to build a logical argument to address these issues. "There are a lot of legitimate technical, social and environmental concerns," she said. She doesn't oppose the project per se, but rather advocates scaling it back, Ms. George said. "We would have been less concerned, if it had been scaled back a bit more," she added. The Department of Conservation and Fisheries also rejected the project on environmental grounds. In a November 27 letter that was part of the development summary document compiled by Town and Country planning, Conservation and Fisheries Department identified, 11 major issues to reject the proposed project based on substantial evidence.
Jobs
The coalition also said that during the Beef Island development jobs for locals will be limited, due to lack of training and certification of vocational trades. "The government and the developer need to work out a system to ensure the laborers will be properly screened and will leave the territory at the end," Ms Georges said. On February 9, the chief minister said that the developer has committed to giving first preference for all major contracts to local companies and to employing local people at all levels of the company. Whenever we do developments like this, we always impress upon the developer that we are interested in the development largely because of the employment openings of opportunities for the people of the British Virgin Islands, Dr. Smith said.
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