Paul Lewis A Native of Canouan Island Marlon Mills of Villa Sylvia Sutherland of Lowmans (ld) Matthew Harvey of Union Island Friends of the Tobago Cays Claimants v Canouan Resorts Development Ltd First Defendant Canouan Reality Ltd Second Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | THOM, J |
| Judgment Date | 03 May 2011 |
| Judgment citation (vLex) | [2011] ECSC J0503-1 |
| Docket Number | SVGHVC 408 OF 2010 |
| Court | High Court (Saint Vincent) |
| Date | 03 May 2011 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SVGHVC 408 OF 2010
In the Matter of the Canouan Resorts Development Limited (Lease Ratification) Act Cap 100A of the Laws of Saint Vincent and the Grenadines Revised Edition 1990
AND
In the Matter of the of Sections 8(8) of the Constitution of Saint Vincent and the Grenadines Chapter 2 of the Laws of Saint Vincent and the Grenadines Revised Edition 1990
AND
In the Matter of the Fisheries Act Cap 52 of the Laws of Saint Vincent and the Grenadines Revised Edition 1990
AND
In the Matter of the Wild Life Protection Act Cap 55 of the Laws of Saint Vincent and the Grenadines Revised Edition 1990
AND
In the Matter of Protocol Concerning Specially Protected Areas and Wildlife (spaw) 1990
AND
(Acting as trustees for and Managers of the affairs of the)
Mrs. Kay Bacchus-Browne and Ms. Nicole Sylvester for the Applicant
Mr. Joseph Delves for the First Defendant
Mr. Grahame Boilers for the Second Defendant
On November 5, 2010 on a Without Notice application filed on behalf of the Applicant, the Court granted an interim injunction against the Respondents restraining them from dredging, drilling, excavating or using machinery, equipment or drills to remove, displace or interfere with the seabed at Point De Jour Bay, Godahl Lagoon, Canouan.
On November 12, 2010 the Applicant filed an application to continue the injunction on the ground that if the injunction is not continued the Respondents will continue to dredge and irreparable harm would be done to the area.
The Applicant is an unincorporated, non-profit association who made this application by its trustees who are citizens of Saint Vincent and the Grenadines.
The First Respondent is a company incorporated in the Commonwealth of the Bahamas. It entered into a lease agreement with the Government of Saint Vincent and the Grenadines whereby a part of the Island of Canouan was leased to the First Respondents. The lease agreement is included in the Schedule of the Canouan Resorts Development Ltd (Lease Ratification) Act.
Article 23 of the Lease Agreement provides inter alia that the lease shall be governed, interpreted, construed and regulated by the Laws of Saint Vincent and the Grenadines.
The Second Respondent is a company incorporated in the Commonwealth of the Bahamas and is a licensee/agent of the First Respondent.
Article 7 (C) (ii) and (iv) of the Lease Agreement read as follows:
"7. Covenants of the Lessee— The Lessee covenants and agrees with the Lessor:
(ii) not to interfere with the reefs on the eastern side of the premises, or conduct or permit dredging operation therein;
(iv) not to remove sand from any beach on the Island to be transferred elsewhere……."
The Applicant alleges that contrary to Article 7 (C) (ii) and (iv) of the Lease Agreement, the Wild Life Protection Act No. 16, 1987; the National Parks Act No. 30 of 2002 and the SPAW convention, the Respondents on or about the 25 th day of October 2010 commenced dredging on the eastern side of the Island of Canouan. The matter was reported to the Minister of Health and the Environment by letter dated October 29, 2010 and copied to other Public Officials.
On November 4 and 19, 2010 Mr. Williams Stephen Price a Marine Ecology Conservationist at the request of the Applicant produced reports in which he stated that dredging in Point de Jour Bay, Godahl Lagoon, Canouan had a negative impact on the reefs ecosystem of the bay and beach area. He gave details of damage done to the Marine Systems — Seagrass beds, Benthic floor, reefs; and Wildlife — birds, fish and sea turtles.
The Respondents urged the Court to discharge the injunction for the following reasons:
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(a) The undertaking is unsatisfactory. The affidavit does not state the ability of the Applicant to honour the obligation in damages — see Commercial lnjucntions by Stephen Gee p. 244 — 9.006.
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(b) There was material non-disclosure. It was not disclosed that the Applicant was an unincorporated body.
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(c) There was delay in bringing the application. The dredging was in process for approximately 11 days. No reason was given why notice of the application was not given to the Respondents — National Commercial Bank Jamaica Ltd v Olit Corporation Limited P.C. No. 61 of 2008.
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(d) The Applicant has no cause of action against the Respondents. The rights alleged to be infringed are public rights and public rights are enforced by the Attorney-General — see Gouriet and Others v Union of Public Service Workers [1977] WLR p. 300; Lonrho Ltd v Shell Petroleum [No. 2] H.L. [1981] A.C. — p. 173; John Gumbs v Attorney-General of Anguilla Civ. Appeal No. 9 of 2005.
Learned Counsel for the Applicant submitted in reply that there was no material nondisclosure. The Applicant agreed that it was not disclosed that the Applicant was an unincorporated body but submitted that the general rule is that an unincorporated association lacks legal capacity to sue or be sued in their own name but the courts have adopted a flexible approach and unincorporated associations have been allowed to bring claims — see R v Towers Hemlets LBC Exp. Tower Hemlets Combined Traders Association [1994] C.O.D 325; R v Ministry of Agriculture Support, Fisheries and Food exp. British Pig City Council Group [2000] EULR 724; On the application of West End Street Traders Association v Westminster City Council [2004] EWHC.
In relation to the issue of delay Learned Counsel submitted that there was no delay in making the application. The report of the Conservationist Dr. Price was received on November 4, 2010 and the application was made the same day 4 th November, 2010. There was no time to give notice as the dredging was already in progress — see National Commercial Bank case.
Learned Counsel also submitted that the Applicant has locus standi to bring the claim. The Court should adopt a generous approach. The policy should be to encourage and not to discourage public spirited individuals and groups. The Applicant is not a meddlesome busy body. The Applicants constitution at Article 3(a) and on the 29 th October 2010, a resolution was passed which clothed the Applicant with power to protect environmental laws within the State of Saint Vincent and the Grenadines. Further the Fisheries Act, Breach Protection Act and the National Parks Act do not expressly specify the persons who can approach the Court for infarction of the provisions. It does not limit the category of persons to that of the Attorney-General — see Attorney-General v Blake [1998] Oh. 439; Intertrade Corporation v David Cram and Windjammer Landing Company Ltd. Civil Appeal No. 1 of 1996; Virgin Island Environmental Council v The Attorney-General and Quorum Island BVI Ltd Claim No. 185 of 2007. The Court can therefore exercise its discretion as to the proper person entitled to bring this Application. The Court can of its own motion join the fisheries officer and other public officers pursuant to CPR 19.3 — see In the matter of Bank of Europe Ltd (in Receivership), Financial Services Regulatory Commissions Peter Queeley and Hugh Henry No. 400 of 2005.
Learned Counsel further submitted that the cases of Gouriet v Union of Post Office Workers and Lonrho Ltd are distinguishable from the pursuant case, since in the present case the Applicant's legal position is prejudiced by the dredging. Also the present case falls within the first exception in the Lonrho Ltdcase. The only remedy provided by the Acts is not that of a criminal sanction. The scope, purpose and object of the Acts is to preserve and protect the Wildlife, fauna etc. The Act was created for the benefit of persons who are conservationists, environmentalists and associations whose objects include protecting the Wildlife of Saint Vincent and the Grenadines such as the Applicant -see Blackburn v Attorney-General [1971] 1 WLR p. 37.
Learned Counsel also submitted that the Applicant's right is akin to security of tenure which exists at common law. Tenure rights over natural resources are synonymous with property rights. It covers all the means by which individuals and communities gain legitimate access to and use of natural resources. The absence of full ownership over natural resources does not preclude possibility of tenure rights over natural resources.
Ralph Gibson LJ in Brink's Mat Ltd v Elcombe et al [1988] 1 WLR 1350 outlined the principles by which a Court should be guided when considering whether there was material non-disclosure on an application for interlocutory relief. This approach was adopted by the Court of Appeal in Edy Gay Addari v Enzo Addari No. 2 of 2005 where the Court said:
"In considering whether there has been non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following:
(1) The duty of the applicant is to make "a full and fair disclosure of all the material facts." See Rex v Kensington Income Tax Commissioners, Ex parte Princes Edward de Poligrac [1917] 1 KB 486, 514 per Scrutten LJ.
(2) The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the Court and not by the assessment of the applicant or his legal advisors. See Rex v Kensington Income Tax Commissioners, per Lord Cozens-Hardy M.R. at p. 504, citing Dalglish v Jaruie [1850] 2 Mac G 231, 238 and Browne — Wilkinson...
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