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All Tobago Fisherfolk Association v. Tobago House of Assembly

The Tobago House of Assembly expressly endorsed 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” submitted to the Environmental Management Authority without consultation with the claimant. The claimant, a non-profit organization representing the interests of the fishermen in Tobago, filed a claim to review this decision to endorse and requested the court to quash the decision as defendant’s endorsement supported conclusion that no fisherman in Tobago were directly and/or indirectly affected by a seismic survey that was to be conducted. The court was asked to determine whether the defendant exceeded its power by making the decision to endorse the framework for an improper purpose or failed to take into account relevant considerations or took into account irrelevant considerations in the exercise of its power.

Destacados

[41] This court agrees with the submission of the Defendant on this issue. It is one thing to say that the effect of the endorsement was that of a favourable consideration by the EMA of the application for the CEC but quite another to impute a fraudulent or improper motive as a consequence of that effect without more evidence. In this case the evidence does not remotely lead the court to the conclusion that the intent of the THA was to take sides in the issue and to dishonestly promote the interest of the private party BHPB. The court agrees that the endorsement was a wholly unnecessary document for the purpose of the grant of the CEC. It was not required by law neither was it requested by the EMA. Additionally, neither is there in fact a scintilla of evidence which gives rise to the inference that BHPB would have received favourable consideration because of the endorsement. It would be to stretch the limits of reasonable inference should the court so hold. In other words, to so find would be pure speculation in the absence of supporting evidence from which such a conclusion can be made. The burden on the Claimant to prove improper motive is a heavy one and it has failed to discharge that burden.
[42] Further, and on that issue, the court accepts the evidence of the Defendant that the meetings held between the Defendant and BHPB were in respect of statistics and so the presence of the Claimant was not needed in so far as the allegation of the Claimant may have been that these meetings evidenced some sort of collusion on the part of the Defendant and BHPB. The court also accepts (as set out above) that the map provided to BHPB was one which was provided ultimately by the Ministry and that there would have been no collusion in respect of the information set out in the map. In relation to the list of fishermen and vessels provided to BHPB by the Defendant, it is a reasonable inference in the absence of other evidence that the list was inaccurate because of error in proper record keeping and not out of an attempt by the THA to interfere with the list so as to remove persons there from as this dishonest act could be of assistance to either BHPB or the THA.
[43] In this regard the Claimant submits that the Defendant failed to consult with them and to consider their input as persons directly affected by the decision to endorse. That the Defendant failed to consider whether their members would be affected and whether there should be a mechanism for compensation contained in the framework; that they filed to consider the likely impact on fish stock in the survey area; that the Defendant is generally regarded in law to be the final authority on matters of fisheries and the environment in Tobago; that a letter emanating under its hand could be persuasive; that its powers should not be discharged in a partisan manner and ought to be discharged only after weighty consideration; that it possessed the power to request BHPB to engage in meaningful discussions with the Claimant on matters required by the EMA before endorsing the framework.
[46] The court is somewhat taken aback by the submission of the Defendant in this regard. When read, both documents clearly show an intention by BHPB to meet with various stakeholders in the future. This means that having obtained a CEC, after obtaining an endorsement from the THA based on erroneous information as to whether there was fishing activity in the survey area and erroneous information as to the number of registered fishermen and vessels operating in the area and having decided that no compensation was payable on the basis that there was no concentrated fishing activity in the survey area, BHPB was now intending to meet with parties, figuratively after the horse had bolted. What then was to be the purpose of these meetings. Surely they could not have been for the purpose of consulting the Tobago folk about whether they fished in the area and about compensation for depletion of stock or inconvenience to their means of earning a living. These meetings could only have been for the purpose of informing the residents of the procedures involved during the survey for complaints, compensation for damage to fishing vessels or fishing equipment, non financial and financial compensation for FADS (Fish attracting devices) and a procedure for engaging directly with anyone who can show that they have historically fished in the survey area to determine if and how they are impacted by the survey. These meeting were essentially not meetings of consultation but meetings to disseminate information. Further, these post endorsement meetings were to be between BHPB and residents, not the THA. See the framework pages 2 to 5.
[47] In this case there was in effect no public consultation prior to the endorsement of the framework. See also R v North and East Devon Health Authority ex p Coughlan 200 3 AER 850 at paragraphs 108 and 112.
[48] In the court’s view therefore, the Defendant failed to take into account relevant considerations prior to endorsing the framework [...]
[49] In the court’s view, the influence of these relevant considerations, had they been known by the Defendant, would have been material and substantial in relation to the decision as to whether to endorse the framework and would have more likely than not have resulted in a change of that decision. The court therefore finds on this basis that the power to endorse had not been validly exercised.
[55] The rules of natural justice require that the decision maker approaches the decision making process with 'fairness'. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn in Lloyd v McMahon [1987] AC 625, the rules of natural justice are not engraved on tablets of stone. In this case the Defendant was in the process of making a decision which may or may not have impacted the livelihood of Tobagonians, the persons in respect of which it owes a duty and a responsibility under the provisions of the Act. It could be said that the decision maker failed to disclose the fact that it had been approached for an endorsement and that it was in the process of collecting, considering and providing relevant information in relation to that endorsement. Further that the decision maker failed to provide an opportunity to those who may have been adversely affected by the decision, to consider and confirm the validity of the information upon which it was going to rely in making that decision and to provide feedback thereon to the Defendant.

[57] In that regard, the fisherfolk of Tobago have reposed in the Defendant the ultimate responsibility for the management of the resources which form the basis of their livelihood and contribute in no small measure to the tourist economy of the twin island. To whom much is given much is expected. A decision to endorse a framework which states that none of the Tobago fisherfolk will be affected is to endorse a process which may endanger the livelihood of the ones on whose behalf the trust is reposed without permitting the opportunity to those persons to be heard on the accuracy of the information presented and which forms the basis of the decision. The fact that the EMA does not require an endorsement for the grant of a CEC, while relevant to the harm to be suffered does not in the court’s view make the potential damage so insignificant, remote or speculative so as to negate the entitlement to a fair hearing by the Claimant before the making of the decision as to endorsement. It may have equally been the case that the EMA would have in any event, asked for the views of the THA, which they were entitled to do, (see section 35(4) of the Environmental Management Act) and may have taken those views on board when deciding whether to grant the CEC. In the circumstances the Claimants were entitled to their say in relation to the framework and the information upon which it was based whether in writing or otherwise at the least. Fairness would have demanded nothing less. The court therefore finds that the decision to endorse the framework was made in breach of procedural fairness, namely breach of the right to be heard. 

Decisión

The Court declared that the decision to endorse the framework was made in breach of procedural fairness, namely breach of the right to be heard, and was null and void and of no effect. The defendant is also mandated to consider representations by the claimant should the defendant embark on a fresh process of deciding whether to issue an endorsement.

Fecha de la sentencia

17/11/2014

Órgano resolutor

High Court of Trinidad and Tobago