Virgin Islands Environmental Council v Attorney General

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 21 September 2009
• Docket Number: Claim No. BVIHCV2007/0185
• Court: High Court (British Virgin Islands)
• Date: 21 September 2009

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Claim No. BVIHCV2007/0185

BETWEEN

Virgin Islands Environmental Council

Claimant

and

The Attorney General

Defendant

and

Quorum Island BVI Limited

Interested Party

Appearances:

Mr. Stephen Hockman QC and Mr. Mark Beard of Six Pump Court, Temple, London for the Claimant

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

Mr. Gerard St. Clair Farara QC and Dr. Lloyd Barnett of Farara Kerins for the Interested Party

CATCHWORDS:

Administrative law — Judicial Review — Attorney General as a proper Defendant — Amendments to Statement of Claim — Delay — Grounds for claim for judicial review — procedural impropriety — bias and predetermination — non-disclosure of documents — lack of reasons for decision — Illegality — whether Hans Creek is a fisheries protected area under Regulation 51(5) of the Fisheries Regulations 2003 — Fisheries Act 1997 — whether Regulations 51(1) and 64(1) of the Fisheries Regulations create prohibition and a criminal offence — Section 29 of the Constitution — International Treaty Obligations — Irrationality and the Wednesbury unreasonableness — whether Decision to grant planning approval was so outrageous that in its defiance of logic or of accepted moral standards that no sensible person could have arrived at it.

Introduction

HARIPRASHAD-CHARLES J

1 Marine protected areas are safe havens for underwater plants and animals. They are valuable tools for protecting coral reef-habitats and managing near-shore fisheries while playing an essential role in the overall conservation of marine biodiversity. These were some of the factors which motivated a coalition of local fishermen, concerned residents, scientists and environmental activists, known as Virgin Islands Environmental Council (‘VIEC’) to institute the first environmental case in the British Virgin Islands (‘the BVI’). The claim for judicial review seeks an order in terms of the prerogative writ of certiorari to quash the decision (‘the Decision’) of the then Chief Minister and Minister of Planning (‘the Minister’) granting planning approval to the Interested Party, Quorum Island BVI Limited, for the development of a five- star hotel, marina and golf course (‘the Beef Island Project’). 1

Brief background facts

2 The Claimant, VIEC is established under the BVI Business Companies Act 2000 (as amended) as a company limited by guarantee of its members with no share capital. It is purportedly a non-profit environmental organisation whose objects include promoting environmental democracy, public participation, access to justice on environmental issues and the enforcement of environmental legislation.

3 Initially, VIEC applied for leave to make a claim for judicial review against the Minister and the Attorney General Chambers. Leave was granted ex parte on 20 ^th August 2007 and VIEC was permitted to amend the application to reflect the Attorney General as a party and not the Attorney General Chambers. Subsequently and acting on legal advice, VIEC applied to delete the Minister as a Respondent thereby leaving the Attorney General as the sole Respondent/Defendant. On 7 ^th November 2007, before Olivetti J and with all three parties being represented by Counsel, the Court ordered that the Attorney General be substituted as the sole Defendant in these proceedings.

4 Quorum is a company incorporated in the BVI and is the developer of the Beef Island Project. On 28 ^th September 2007, it was granted leave to be joined as the Interested Party in these proceedings. Quorum owns 659.2 acres of land on Beef Island which includes the site upon which the Beef Island Project is proposed to be built.

5 On 6 ^th August 2006, Quorum submitted two applications, D267/06 and D268/06 seeking planning approval for the Beef Island Project. By a letter dated 31 ^st January 2007 (‘the Approval Letter’), the Minister informed Quorum's Chief Executive Officer, Mr. Hung of the Decision granting planning approval.

6 At the time of the Approval Letter, Quorum was owned by Applied Enterprises Limited (‘Applied’), a company incorporated under the laws of Hong Kong to whom a license to hold 9,999 shares in Quorum was issued by the Governor of the BVI on 24 ^th January 2007.

7 About the same time that the applications for planning approval were being submitted on 6 ^th August 2006, Quorum and Applied entered into a Joint Venture Agreement (the ‘JV Agreement’) on 11 ^th August 2006 with Interlsle Holdings Limited (‘Interlsle’). The JV Agreement was subject to certain preconditions, including the obtaining by Quorum of planning approval of the master plan for the Beef Island Project, Interlsle would purchase a 50% interest in Quorum for $21 million and be jointly responsible for obtaining financing for the Project. Also, on 11 ^th August 2006, the said parties entered into a Development and Management Agreement (‘the Development Agreement’), whereby, subject to completion of the sale of 50% of Quorum to Interlsle, Interlsle would undertake and be responsible for the management of the Beef Island Project.

8 On 29 ^th June 2009, Interlsle applied with the concurrence of Quorum and the Governor's issuance of a license, to purchase and hold 50% of the shares in Quorum and for Charles H.F. Garner and Federico J. Sanchez Ortiz to be directors of Quorum. This represented an investment of approximately $21 million by Interlsle in Quorum. It was made pursuant to the JV Agreement.

9 Shortly after, VIEC brought this claim for judicial review challenging the lawfulness of the Decision taken by the Minister. Quite properly, VIEC does not ask the court to adjudicate upon the merits of the Beef Island Project or whether it may result in adverse environmental impacts.

Preliminary Issues

10 Several preliminary issues arise for determination before the grounds for judicial review can be properly addressed. These are:

• (1) Is the Attorney General a proper party to these proceedings?

• (2) Should VIEC's application to amend the statement of claim be granted?

• (3) Was there delay in bringing the claim for judicial review?

• (4) Should Calvin Smith be added as a Claimant? (which is made in the alternative in the event that VIEC is found to not have standing to bring this claim for judicial review) and

• (5) Does VIEC have standing to bring this claim?

11 Although the Attorney General and Quorum comprehensively dealt with issues (4) and (5) in their written submissions, both parties have prudently abandoned them during the course of the hearing.

Attorney General as defendant

12 At the outset of the hearing, a point in limine arose which had to be decided first as, if upheld, may have precluded further consideration of the substantive issues in this claim for judicial review. Learned Queen's Counsel, Mr. Farara, appearing for Quorum had raised the issue that the Attorney General is not a proper party to the claim for judicial review and that the proper defendant is the Minister whose decision is being called into question since serious allegations are being made against him, for instance, that he ‘was permitting the commission of a criminal offence.’

13 Mr. Farara QC submitted that it has long been established that the Attorney General is not a proper or necessary party to a claim for judicial review and that judicial review proceedings involving the prerogative writs are not “civil proceedings” within the meaning of the Crown Proceedings Act 2. (‘the CPA’). According to him, such proceedings relate to private rights and not to public rights. His submissions were endorsed by the Learned Solicitor General.

14 After hearing submissions from all parties, I ruled that the Attorney General was a proper defendant to these proceedings. I gave oral reasons for my decision which I have now reduced to writing.

15 A convenient starting point is section 13(2) of the CPA which provides that ‘ Civil proceedings against the Crown may be instituted either against the Attorney General or against an authorised officer in his official name’. 3

16 On a proper reading of section 13(3), it is clear that civil proceedings against the Crown may be instituted either against the Attorney General or against an authorised officer in his official name but not against both. However, the CPA does not define civil proceedings. It does however, set out in section 19, the proceedings against the Crown which falls under the CPA. Section 19(2) states as follows:

‘Subject to the provisions of this section, any reference in this Part to civil proceedings against the Crown shall be construed as a reference to the following proceedings only—

• (a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Ordinance had not been passed and the Crown Suits Act had not been repealed, might have been enforced or vindicated or obtained by the proceedings mentioned in paragraph 2 of the Schedule or by an action against the Attorney General under the Crown Suits Act;

• (b) all such proceedings as any person is entitled to bring against the Crown by virtue of this or any other Ordinance, or any law;

and the expression ‘civil proceedings by and against the Crown shall be construed accordingly.’

The type of proceedings mentioned in paragraph 2 of the Schedule is ‘proceedings against Her Majesty by way of monstrans de droit.’

17 Both the Attorney General and Quorum rely heavily on the case of Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd4 for a definition of ‘civil proceedings.’ It was held (by the Court of Appeal of Jamaica) that:

‘The definition of “civil proceedings” in the Crown Proceedings Act excluded proceedings which would be taken in the Crown side of the Queen's Bench Division, i.e. the prerogative writs of certiorari, mandamus and prohibition…Section 13 of...