Quorum Island (BVI) Ltd Appellant/Interested Party v Virgin Islands Environmental Council Respondent/Claimant The Minister of Planning Respondent/Defendant

• Jurisdiction: British Virgin Islands
• Judge: RAWLINS, C.J.,Hugh A. Rawlins,Ola Mae Edwards,Davidson Kelvin Baptiste
• Judgment Date: 12 August 2011
• Neutral Citation: VG 2011 CA 8
• Judgment citation (vLex): [2011] ECSC J0812-4
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: HCVAP 2009/021
• Date: 12 August 2011

[2011] ECSC J0812-4

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCVAP 2009/021

Between:

Quorum Island (BVI) Limited

Appellant/Interested Party

and

Virgin Islands Environmental Council

Respondent/Claimant

The Minister of Planning

Respondent/Defendant

Appearances:

Mr. Gerald Farara, QC, with him Ms. Tamara Cameron for the Appellant

Mr. Stephen Hockman, QC, with him Mr. Mark Beard for the Respondent/Claimant

Mrs. Joanne Roberts-Williams, Solicitor General, for the Respondent/Defendant

Appeal - Judicial Review - Prerogative relief proceedings - Whether the Attorney General is a necessary and proper party - Section 13 of the Crown Proceedings Act - Section 2 of the Eastern Caribbean Supreme Court (Virgin Islands) (Amendment) Act, 2000 -rule 19(3) and Part 56 of CPR 2000 - Whether protected area validly declared - Whether Minister's grant of approval for development project in area purportedly declared a protected area tainted with illegality - Sections 13, 19, 36, 71 and 79 of the Fisheries Act - Regulation 51 of the Fisheries Regulations 2003 - Sections 19(6) and 43 of the Interpretation Act

In January 2007, the then Chief Minister and Minister of Planning ("the Minister") approved an application by the appellant, Quorum Island BVI Limited ("Quorum Island"), for the development of a five-star hotel, marina and golf course at Beef Island, Tortola. The respondent, the Virgin Islands Environmental Council ("the Environmental Council" or "the Council"), applied for judicial review, eventually by way of certiorari to quash the Minister's decision. The Council is a coalition of local fishermen, concerned residents, scientists and environmental activists whose objects include promoting environmental democracy, public participation, access to justice on environmental issues and the enforcement of environmental legislation.

The claim was initially brought against the Minister and the Attorney General's Chambers. The latter was changed to the Attorney General. Subsequently, the Council applied to remove the Minister as a defendant. The application was granted in November 2007 and the Attorney General remained as the sole defendant. The defendants were at all times represented by the Solicitor General and members of her Chambers.

At the trial, the Solicitor General and counsel for Quorum contended, as a preliminary objection, that the claim should be struck out because the Attorney General is not a proper party to claims for prerogative or "Crown side" relief. This submission was premised on the contention that while the Attorney General is the proper defendant in civil proceedings against the Crown by virtue of section 13 of the Crown Proceedings Act, there is no principle or statute by which the Attorney General is required to be a defendant in prerogative or "Crown side" proceedings. The trial judge held that notwithstanding that 'civil proceedings' in the Crown Proceedings Act excludes prerogative type proceedings, the effect of rules 2.2(2) and 56.11(2) of CPR 2000 and section 2(a) of the Eastern Caribbean Supreme Court (Virgin islands) (Amendment) Act 2000 is to render the Attorney General a proper defendant in the present case and it was therefore unnecessary to join the Minister as a defendant. The judge accordingly dismissed the objection and proceeded to hear the claim. Quorum Island appealed against her decision on the preliminary objection.

In her judgment on the substantive claim, the judge held that the Council did not prove that the Minister's decision to approve the Project was impeachable on the ground of procedural impropriety or 'Wednesbury' unreasonableness. She however impeached it on the ground of illegality and quashed the decision. In doing so, the judge held that the Project would adversely affect Hans Creek which was validly declared a fisheries protected area pursuant to regulation 51(1) of the Fisheries Regulations 2003.

The Fisheries Regulations 2003 were made under section 79(1) of the Fisheries Act. Section 79(1) permits the Minister to make regulations for better carrying into effect the provisions of the Fisheries Act and states the type of matters for which such regulations may be made. Regulation 51(1) of the 2003 Fisheries Regulations prohibits any person from carrying out any development which is likely to adversely impact any area declared a marine protected area by Order by the Minister published in the Gazette. Hans Creek was then declared to be a fisheries protected area in Regulation 51(5)(b) of the said Regulations. However, it is section 13(1)(b) of the Fisheries Act that specifically empowers the Minister, by Order published in the Gazette, to declare any area of the fishery waters together with the land area up to the high watermark adjacent to such waters to be a protected area.

Quorum Island also appealed against the judge's decision to quash the Minister's approval.

Held: allowing the appeal on the preliminary issue, and substituting the Minister of Planning for the Attorney General as Defendant/Respondent, with no order as to costs in the High Court or in the appeal; and also allowing the appeal against the judge's decision to quash the Minister's approval, with costs to be paid by the Minister to the appellant, Quorum Island, with no costs to be paid by the Environmental Council in the appeal or in the High Court:

• 1. Prerogative or "Crown side" proceedings are not civil proceedings under the laws of the Virgin Islands. There is no provision in the laws of the Virgin Islands. There is no provision in the laws of the Virgin Islands that requires the Attorney General to be a necessary or proper defendant in prerogative type proceedings. However, the Attorney General may be a necessary and proper party in civil proceedings against the Crown, by virtue of section 13 of the Crown Proceedings Act. The proper defendant in prerogative proceedings is the person or authority whose decision is challenged; in the present case, the Minister. The trial judge therefore erred when she held that the Attorney General was a proper defendant in the present case.

  Dicta in Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd (1992) LRC (Const), 720 at page. 721(c) (CA) and page 747(e) (PC); Attorney General v Claude Jardim Civil Appeal No. 134/98, page 2, per Bernard C and (2003) 67 WIR 100, page 105; Chandresh Sharma v Attorney General Trinidad and Tobago Court of Appeal No 115 of 2003, per Nelson J.A at paragraph 36; Richard Frederick et al v The Comptroller of Customs and the Attorney General HVCAP 2008/037 (6 ^th July 2009) per George-Creque, JA, as she then was, at paragraphs 29-32; Gairy and Another v Attorney General of Grenada [2002] 1 AC 167, [2001] 3 WLR 779, per Lord Bingham at paragraph 21; and Monica Ross v Minister of Agriculture, Lands and Fisheries et al Saint Vincent & the Grenadines Claim No. 255 of 2001 (Unreported), per Webster J (Ag.) at paragraph 10 and 11, followed.

  2. Pursuant to rule 19.2 of CPR 2000, the judge should have removed the Attorney General and rejoined the Minister as the defendant when the issue was raised on the preliminary objection at the trial. The joinder of the Minister as a defendant is facilitated even at this stage of the proceedings. This is because the Solicitor General, who has at all times represented the Attorney General and who represented the Minister when he was a defendant, has stated that the Minister is aware of all aspects of the proceedings from their commencement. Additionally, rule 8.5(1) of CPR 2000 provides that a claim shall not fail because a person who should have been made a party was not made a party to proceedings or that a person was made a party who should not have been added.

  Dictum by Lawrence Collins LJ in Dunwoody Sports Marketing v Prescott [2007] WLR 2343, at paragraph 23 applied.

• 3. It is a primary tenet of the rule of law that a public authority must make decisions within the bounds of any discretion conferred by law. An administrative decision is illegal if the decision maker contravenes or exceeds the terms of the power which authorized the decision, or if the decision purports an objective which the conferring power did not contemplate. It follows that, in order to determine whether an administrative decision is illegal, the court, as the guardian of legality, must first construe the authorizing power; determine its terms, scope and purpose, and measure the decision or action against these. Where, as in the present case, statute confers discretion upon the Minister to declare fisheries protected areas, such areas must be validly declared in the manner authorized by the enabling statute if the Minister's approval of development in such an area is to be impugned for illegality under the ultra vires doctrine.

• 4. In determining whether the declaration of Hans Creek, and, by extension, whether the Minister's approval of the Beef Island Project was tainted by illegality, reference must be made to the provisions of the Fisheries Act, which empower the Minister to declare protected areas. The court must consider the intention, object or purpose of the enabling provisions in the Act, and, by that reference, determine whether the declaring regulations have a rational nexus with the intention, object or purpose of the Fisheries Act. The court is not concerned with the policy, wisdom or efficaciousness of the statute.

  Dicta in Maharashtra State Board of Secondary and Higher Education v Kurmarsheth (1985) LRC (Const) 1083, at pages 1091-1092; in McEldowney v Forde (1969) 3 WLR 179, at page 191 and Attorney General v Great Eastern Rly. Co (1980) 5 App Cas 473, at page 478 applied.

• 5. Hans Creek is a critical fisheries conservation area that should be protected. It does not matter whether Hans Creek is...