Eastern Caribbean Court of Appeal to hear new arguments in Barbudans’ legal action against “unlawful” development of international airport

Tuesday 11 September 2018

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Lawyers for Barbudans say “fresh evidence” submitted by Government of Antigua and Barbuda is “woeful” and proves construction took place without planning permission and without evidence an adequate Environmental Impact Assessment was ever completed.

Government seeking Court of Appeal permission to lift injunction that halted construction work on the airport

LONDON, United Kingdom, September 11, 2018 – Today, in what is already shaping up to be a landmark case for Antigua and Barbuda, lawyers for a group of Barbudans will defend their case at the Eastern Caribbean Court of Appeal against the Government of Antigua and Barbuda’s challenge to the injunction that halted construction work on the airport.

The legal action reveals multi-department failure to comply with regulations including failure to complete required environmental impact assessments, incomplete submission of proposed plans, failure to receive Barbuda Council approval of the proposed plans, and instances where the government ignored its own reports of risk to the island.

To date, at least 7,100 ft spanning west to east of once virgin forest lands in Barbuda have been cleared for the construction of the airport.  These lands were traditionally used by Barbudans for grazing, farming and hunting and were the habitat of the rare red-footed tortoise and the feeding grounds for the Barbudan Fallow deer. Rare ancient forest trees, including the white sap tree, have also been cleared.

The Judges’ decision in this afternoon’s appeal will determine if the injunction will continue. If the Government’s case is rejected by the Court, the injunction will remain in place.

This is the latest in a series of legal actions being taken by Barbudans against the Government of Antigua and Barbuda surrounding the attempt to force changes to the land tenure system and introduce unsustainable and speculative developments on the island of Barbuda.

A Freedom of Information request by Barbudans on June 26 this year revealed that the Antigua & Barbuda Airport Authority and the developers continued the airport construction despite knowledge of major ecological and archaeological risks and damage to island. Lawyers for the Barbudans will argue that the work took place before a planning application was made, continued without planning permission and without any evidence that an adequate Environmental Impact Assessment had been carried out.

The case comes as the Government of Antigua and Barbuda prepares to hold a referendum on November 6, 2018 called by the Government to determine whether the final court of appeal for Antigua and Barbuda should be the UK Privy Council or the Caribbean Court of Justice. The Government’s position is that the final court of appeal should be the Caribbean Court of Justice.

“The Government has to be held to account. What we are witnessing here with the Government’s actions is a blatant disregard for the law and the Physical Planning Act. It cannot go around ignoring its own Acts of Parliament with contempt, and in doing so ride roughshod over the environment” said Leslie Thomas QC, international human rights barrister at Garden Court Chambers in the UK and lead attorney at Justice Chambers in Antigua, who is representing Barbudans on this case.

Thomas will argue in defence of the Barbudans’ case that:

  • The original Environmental Impact Assessment (EIA) submitted by the developers in November 2017 was seriously inadequate, according to Department of the Environment documents disclosed in response to a Freedom of Information request in June 2018.
  • The Government now relies on a letter from the Department of the Environment dated 10 August 2018 – which refers to an alleged second EIA carried out in May 2018, but this second EIA has never been provided to the Court, the claimants or the people of Barbuda. The letter also appears to indicate that significant further work needs to be done in order to mitigate the environmental effects of the airport.
  • The development of the airport appears to have been hastily granted permission through an unlawful process on July 18, 2018 – nine days after Barbudans made their original request for an injunction to stop construction on the airport, and ten months after construction of the airport first began. All the works carried out in the preceding several months appear to have been in breach of planning.

Arguments are scheduled to begin at 10:00 a.m. ECT on September 11, 2018 with lawyers for both sides making arguments via video link (lawyers for Barbudans in the UK; government lawyers in Antigua) with the Eastern Caribbean Court of Appeal sitting in St. Lucia.

On August 2, 2018 Barbudan claimants John Mussington and Jacklyn Frank were granted permission to pursue a judicial review against the Development Control Authority (DCA) for failure as the regulatory body to ensure that the planning legislation is complied with for the good of Antigua and Barbuda; and a temporary injunction to prevent any further work on the airport was granted until the Antigua and Barbuda Airport Authority and DCA comply with the statutory obligations under planning laws. The judicial review proceedings are scheduled to begin on September 26, 2018.

The Barbudans are seeking to address failures by their central government to meet critical requirements under the Physical Planning Act 2003 in the development of the airport and failure to follow proper planning procedures where developers want to commence construction.

The applicants have filed the case as representatives of Barbudans who are affected by and opposed to the massive destruction of forests, wildlife and ecosystems associated with the construction of the airport.  The following government departments are listed as defendants in the application: Development Control Authority (DCA), the Antigua and Barbuda Airports Authority (ABAA) and The Attorney General of Antigua and Barbuda.

Steady and unabated land clearing for the construction of the airport has been observed by locals for the last year despite major delays, including the return of essential services, in the island’s recovery from Category 5+++ Hurricane Irma a year ago.

The case, expected to be closely followed throughout the Caribbean region and international community, including environmental and human rights communities, could set the stage for similar action across the islands regarding sustainable development planning and ethical government conduct, both critical areas of public interest.

Leslie Thomas QC, Marc Willers QC, Thalia Maragh and Tihomir Mak of the Garden Court Chambers International team are instructed in this case.

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