All Tobago Fisherfolk Association v Tobago House of Assembly
| Jurisdiction | Trinidad & Tobago |
| Judge | Rahim J |
| Judgment Date | 17 November 2014 |
| Neutral Citation | TT 2014 HC 380 |
| Docket Number | CV 1602 of 2014 |
| Court | High Court (Trinidad and Tobago) |
| Date | 17 November 2014 |
High Court
Rahim, J.
CV 1602 of 2014
Ms. D. Moore-Miggins and Ms. M Henry for the claimant
Mr. E. Prescott SC and Mr. G. Ceasar for the defendant
Ms. K. Persad observer for BHP Billiton
Judicial Review - Endorsement by defendant of petroleum framework without first consulting the claimant — Illegality — Ultra vires — Improperpurpose — Legitimate expectation and natural justice — Whether irrelevant consideration taken into account — Decision made in breach of principles of natural justice and therefore null and void and of no effect.
This is a claim toreview the decision of the defendant to expressly endorse the contents of a document entitled ‘Framework for Identifying and Communicating with the Affected Users of BHP Billiton's (BHPB) 2014 Deep Water Seismic Survey Area’, (hereinafter referred to as “the framework”) submitted to the Environmental Management Authority on the 19th November 2013 without consultation with the claimant. In so doing, according to the claimant, the defendant would have also supported or endorsed BHPB's conclusion that no fisherman in Tobago is directly and/or indirectly affected by a seismic survey that was to be conducted by the said BHPB in the waters off the north eastern coast of Tobago. The claimant therefore asks the court to move the decision into the high court and quash it. Several other decisionsallegedly made have been challenged but they all touch and concern the very same issue and appear to be prolixin the circumstances of the substantive claim.
The claimant is a non-profit organization registered as such under the Companies Act Chap 81:01 and its principal objective is to represent the interest of its members who are fishermen and/or owners of fishing vessels operating in the waters off the island of Tobago. The defendant (THA) is a body corporate created by section 141 of the Constitution with powers prescribed by the Tobago House of Assembly Act Chap 25:03 (hereinafter referred to as “the Act”). It is responsible for the formulationand implementation of policy in respect of the matters set out in the Fifth Schedule of the Act in respect of the island of Tobago, which includes agriculture and fisheries. For the better performance of its functions, the Assembly is empowered to do all such acts and take all such steps as may be necessary for, or incidental tothe exercise of its powers or for the discharge of its duties and in particular the matters set out at section25(2)(a), (b) and (c) of the Act.
There exists a department within the THA called the Marine Resources and Fisheries Department, which itself is a department of the Division of Agriculture, Marine Affairs, Marketing and the Environment of the THA. That department is responsible for the sustainable management of Tobago's marine resources. The department is subdivided into the Fisheries Aquaculture Unit and the marine Area Unit. The first unit is primarily responsible for the development and management of the fishing industry and the second has responsibility for the marine and coastal resources around Tobago.
The claimant has with the permission of the court, relied on the affidavit sworn to and filed by Junior Quashi in support of theapplication for leave on 9th May 2014 in support of theFixed Date Claim. There is also an affidavit on the claimant's behalf filed by Kerwin John on the 29th September 2014 in reply to the affidavit of Nevlin Renwick filed by the defendant on the 23rd September in oppositionto the claim.
Junior Quashi, thepresident of the claimant, owns the fishing vessel named ‘Look Meh’ and has fished in the watersof Tobago for over thirty years. He is also employed with the defendant in the capacity of Road Overseer. He testifies that there are about 1400 individual persons and 14 fishing organizations within the membership of the claimant. He states that in late 2013, he became aware that the government of Trinidad and Tobago was considering the grant of a licence to BHPB for the purpose ofconducting seismic surveys and/or exploration activity for crude oil and natural gas in the waters of Tobago. He says that he knew from past experience that there would be extensive discussions and consultations with thefisherfolk and members of the claimant, explaining the details of the proposed activity, the location and duration. That they would consider the effect on the livelihood of the fisherfolk and negotiate with them in good faith in relation to compensation.
According to Quashi, BHPB held a meeting on the 26th September 2013 with the claimant and other fisherfolk to introduce themselves and discuss BHPB's proposed activities. A copy of notes of that meeting signed by Quashi is exhibited to his affidavit. A perusal of that note shows that the meeting was chaired by Mr. Garth Ottley, referred to as Director of Fisheries Division. The court pauses to observe at this stage that it appears that the notes taken byQuashi, referring to the Fisheries Division is in fact a reference to the Marine Resources and Fisheries Department of the THA (Fisheries Department). This is to be distinguished from the Fisheries Division of the Ministry of Food Production of Trinidad and Tobago. The erroris a common one throughout the documents filed by the claimant but the defendant has made the difference clearin its affidavit. That being said it appears that Mr. Ottley was present at that meeting on behalf of the Fisheries Department of the THA.
Next according to the claimant, Ms. Carla Noel Mendez of BHPB who told the meeting that the surveys were proposed to begin in 2014 and extended into 2016. The location of the survey area was also provided. The floor was then opened for questions and someone enquired about compensation. In response Ms. Mendez stated that the meeting was an introductory one only and other meetings would be held to discuss the issue of compensation. This statement was supported by another of BHPB's representatives Mr. Larry Ward. The meeting ended shortly thereafter.
On the 11th February 2014 another meeting between BHPB and the claimant was held. The members of the claimant were provided withseveral documents including a map which purported to show an area where Tobago fishermen fished and they were informed by BHPB that based on that map, the members ofthe claimant were not affected by the proposed seismic surveys as there was no fishing in that area by the members of the claimant. Despite the protests of the claimant, BHPB responded that they could only use the information which they received and that the said map was in fact provided by the defendant. Concerns were raised about the turning radius of the survey vessels and the length of the fishing lines of some boats which would encroach into the survey area. See exhibit ‘E” to affidavit of Quashi on 9th May 2014.
The documents annexed to the affidavit of Quashi, having been received atthat meeting show that Certificates of Environmental Clearance (CECS) were received from the Environmental Management Authority (EMA) on 8th January 2014 and that the closest distance to the Tobago shore is 17 miles. Thedocument entitled ‘Trinidad and Tobago 3D marineSeismic Survey 2014-Overview’ also sets out thatBHPB will implement the Framework which according to them was approved by the Department of Fisheries of the THA. The documents also set out meeting dates for community meetings. Further, the document explains the process of the seismic survey as being that of sending sound waves into the earth's layers by compressed air. Those sound waves reflect to the surface and are captured andrecorded. The document sets out that there are no consequential changes to the migratory pattern of fish but that independent studies show that there could be temporary changes in catch rates with no long term effects documented to date. In that regard no definition of long term has been provided. The document also states that studies have shown a negligible impact on fish populations when compared with the significant natural mortalityrate for fish eggs and larvae.
It is when the framework was handed to the persons present at the meeting of 11th February that Quashi observed that the framework had been submitted to the EMA on the 19th November2013. Further, attached to that document was a letter under the hand of the Administrator of the Division of Agriculture, Marine Affairs, Marketing and the Environment of the THA dated the 15th November 2013 which is addressed to Mrs. Carla Noel-Mendez andreads as follows:
Re: Framework in keeping with CEC 3956/2013
We are in receipt of the above captioned Framework for communicating with the relevant persons in respect of your company's 2014 deepwater survey completed following consultations with the Department of Marine Resources and Fisheries, Tobago House of Assembly. We have reviewed the framework and endorsed the approach outlined therein.
We look forward to its implementation prior to the start of the survey.
The letter is attached to the framework as attachment 6 and is called ‘Compensation Framework Letter of Endorsement’, Department of Marine Resources and Fisheries, Tobago House of Assembly. There is no issue as to whether this letter emanated from the THA.
So that according to the Quashi, this was the first time that the claimant was seeing the letter of endorsement, namely on the11th February 2014. Further, according to Quashi, it was also the first time that the claimant became aware that the Fisheries Department of the THA had given a map to BHPB which purported to show the area within which they fished and that five meetings between the defendantand BHPB had taken place as stated in the framework. Quashi also states unequivocally that the map presented is old and outdated and does not reflect the...
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