By Orville Williams
Questions about the integrity of the process through which approval was granted for the construction of the international airport in Barbuda dominated yesterday’s Privy Council hearing on the matter.
The case was brought to the Judicial Committee of the Privy Council – Antigua and Barbuda’s final appellate court – by two local Barbudans, Jacklyn Frank and John Mussington, who have been fighting against the airport’s construction on the grounds that it threatens the sanctity of the environment.
The pair found some success in the High Court back in 2018 when Justice Rosalyn Wilkinson granted an interim injunction ordering the immediate cessation of construction work, after the lawyer representing them filed an application for leave for judicial review of the efforts to construct the airport.
That application sought to address, among other things, concerns about non-compliance on the part of the government – and the Development Control Authority (DCA) in particular – with requirements under the Physical Planning Act 2003.
However, around a month later, the Eastern Caribbean Supreme Court (ECSC) ordered the lifting of the injunction, freeing work on the airport to resume.
Subsequent appeals filed in the ECSC by Frank and Mussington’s legal team were unsuccessful, and the duo was also refused conditional leave in 2021 to appeal the matter at the Privy Council, as they were deemed not to have the required standing.
Their legal team then filed directly to the country’s highest court, and with a hearing granted, the Barbudans journeyed to London “where it would be determined whether the Court of Appeal was correct to conclude that they did not have standing to pursue judicial review proceedings against a decision to grant a development permit for the construction of a new airport runway”.
Marc Willers KC, the attorney representing Frank and Mussington, got the ball rolling on Wednesday by detailing the impact of 2017’s Hurricane Irma on Barbuda, which saw the island’s entire population (nearly 1,600 people) temporarily evacuated to mainland Antigua.
More important to the case though, he pointed out that the locals who returned months later were surprised to meet construction work taking place on the airport and a luxury development project.
One member of the panel of judges therefore questioned whether the government had advertised plans for the airport or discussed the matter with the local Barbudans, and whether it was part of an already-established development plan.
Willers went on to discuss the absence of an Environmental Impact Assessment (EIA) – which advises whether construction should be allowed in a certain area, based on the potential environmental impact – prior to the start of the airport’s construction.
That drew more commentary from the panel, with the judges remarking that EIAs are customarily for public participation – implying that the DCA erred in granting approval for the airport construction before one was executed.
The attorney then spoke on warnings made via an eventual EIA of the environmental damage the project had already caused and threatened to continue, which were essentially ignored.
It was previously stated by Jasmine Rayée, a lawyer with the Global Action Legal Network (GLAN) – a vocal supporter of Barbudans in their plight – that a review by independent experts of one of the EIAs that was done proved that the assessment was not sufficient in the context of international standards.
The matter of the DCA’s ‘green light’ was one of the focal points of Willers’ presentation, as he also noted that the developer sought said approval in 2018, when work had actually commenced the prior year, and that ‘approval in principle’ – which does not allow for construction – is what was actually sought and granted.
One member of the panel of judges quipped that, essentially, “work was steaming ahead long before permission was granted for the work to even take place”.
To close out his initial verbal submission, Willers batted for his clients to be considered as having sufficient standing by talking up Mussington’s significant experience as a marine biologist and arguing that both appellants are not ‘busybodies’ or ‘meddlers’, but local residents who have a genuine interest and concern in the development that is taking place close to their homes.
He cited the UK Supreme Court’s decision in Walton v Scottish Ministers 2012, where it was declared that “a person with a genuine interest in an aspect of the environment they seek to protect, who has sufficient knowledge of the relevant subject matter to qualify them to act in the public interest, may be accorded standing in an environmental case, even if the decision under challenge does not directly affect their own private rights or interests”, according to 3 Hare Court.
“The Walton case makes it quite plain…and one can see from the Court of Appeal’s decision that it, in my respectful submission, went wrong in that particular paragraph and as a consequence, failed to apply the correct test, and reached a conclusion that it ought not to have reached,” Webber said.
That refers to the ECSC’s judgement that the Walton case was not a judicial review case, and that it “did not alter the accepted common law position that a busybody or a person who is applying simply as a citizen cannot question the decisions of a public body using the judicial review process”.
Willers also stressed to the panel the importance of ensuring the Court of Appeal’s decision does not stand, considering the long-term implications that that judgement could have on similar matters.
His submission was immediately followed by that of Dr David Dorsett, who represents the second and third respondents – the DCA and the Attorney General.
He argued that the appellants do not have sufficient interest in the case to warrant standing, downplaying Mussington’s scientific experience – noting that “it is an airport and not a seaport, so Mussington’s experience as a marine biologist is not enough” – and referring to Frank as merely a “retired teacher” who could not have much interest in the matter.
“We are prepared to submit that the second appellant and certainly both of the appellants might have a very serious interest and concern…but we say having a strong and sincere interest in environmental interest does not put you over the threshold,” Dorsett said.
He added that if the court was to rule in their favour, it would ‘open the floodgates’ for any-and-everyone to bring similar actions.
The panel, however, questioned Dorsett’s claims, with one judge asking, “If someone living two miles away from a major development doesn’t have a sufficient interest in contesting it, who does?”
The judge added, “Your case seems to be that nobody has a right to challenge the government’s unlawful activity…well, nobody else has come forward, there’s no organisation apparently available to do it, so it has to be a local resident.”
Dr Dorsett then shed light on some of the issues raised earlier, admitting that there was no public consultation on the plans for the airport’s construction and that no steps were taken to inform the public about the approval for the project; accepting that these deficiencies were “not a pretty state of affairs”.
He remarked too that the DCA’s Town and Country Planner may have erred in the decision not to publish notice (considering the large-scale nature of the airport project), but as the DCA is not obligated to do so, he insisted that that was not in direct violation of any laws.
That stemmed from the panel’s confusion over a section of the Physical Planning Act 2003, which they say, as it reads currently, “doesn’t make sense”.
Attorney Hugh Marshall, who represents the Antigua and Barbuda Airport Authority (ABAA) – the first respondent – was the last to bat, arguing that “two miles is too far away from the airport for the appellants to be affected”, and that while he is not opposing a challenge to compliance with the Physical Planning Act, the judicial review process is simply not appropriate.
The absence of an acoustic survey was raised by one of the panel judges, who asked how the claim about two miles being too far away for any effect could be made when one was not done.
Marshall pointed too to the rules of standing, saying the appellants would have been better served bringing the case on behalf of a group, rather than on their own personal behalf.
The case has attracted considerable international attention from legal professionals and environmentalists alike, as it could serve as precedent for dozens, if not hundreds, of legal matters concerning the environment and potentially dangerous development.
GLAN Director, Dr Gearóid Ó Cuinn, spoke on the serious nature of the hearing, the potential outcome and impact after the proceedings.
“Today was a moment of international scrutiny, where a panel of five judges thoroughly examined the dealings around the construction of that private jet runway in Barbuda, and I think it went extremely well.
“This case, I think, is a real testing ground for Latin America and the Caribbean, because it is flushing out and helping us understand what it means to handle the environment in a transparent way, in a way that abides with the Escazú Agreement – which Antigua and Barbuda was one of the first to sign – where locals and ordinary people who are affected by environmental impacts can have their day in court.
“It exposed that the runway was initially constructed illegally, that due procedure had not been followed, and more importantly that locals were never given a chance to understand the proposal. Documents were never published and possibly withheld from them, denying them of the chance to have their day in court to be able to have the decision to approve the airport reviewed.
“So, this I think will set the bar going forward for developments in Antigua and Barbuda. It will, if successful, empower ordinary people to take control of their environment and question developments,” he explained.
The hearing revealed that the habitats of several species resident in Barbuda have been disturbed or destroyed by the ongoing construction work, including those of the Barbuda warbler, the red-footed tortoise, the fallow deer and the country’s national bird, the magnificent frigatebird.
The Privy Council’s Judicial Committee is expected to deliver its ruling on the matter in approximately eight to 12 weeks.