http://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/charles/2013/cv_13_04146DD20mar2014.pdf
[1] By Application filed on the 18th October, 2013, the Applicants applied to
the Court for the following:
i. An Order pursuant to SECTION 6 of the JUDICIAL REVIEW
ACT, CHAP. 7:08 and PART 56.3 of the CIVIL PROCEEDINGS
RULES 1998 (“CPR”) for Leave to apply for Judicial Review of
the decision of the First-named Applicant (“the Minister”) dated
the 25th September, 2013 to amend Parts I, II and III of the Second
Schedule of the CONSERVATION OF WILD LIFE ACT, CHAP.
67:01 (“the Act”) by deleting animals and birds listed therein;
ii. An Order pursuant to SECTION 6 of the JUDICIAL REVIEW
ACT and PART 56.3 of the CPR for Leave to apply for Judicial
Review of the decision of the Minister to destroy the hunters’
camps throughout Trinidad and Tobago.
[2] The Applicants are seeking the following reliefs:
i. A Declaration that the decision of the Minister dated the 25th
September to amend PARTS I, II and III of the SECOND
SCHEDULE of the Act by deleting all of the animals and birds
previously listed therein is irrational, unreasonable and unlawful,
having been arrived at in circumstances which were procedurally
unfair and/or in breach of the rules of Natural Justice;
ii. An Order of certiorari to remove into the High Court and quash
the decision of the Minister dated the 25th September, 2013 to amend PARTS I, II and III of the SECOND SCHEDULE of the
Act by deleting all of the animals and the birds previously listed
therein;
iii. A Declaration that the decision of the Minister to destroy the
hunters’ camps throughout Trinidad and Tobago is unlawful
and/or illegal; and,
iv. Damages.
[3] The grounds upon which the foregoing reliefs are being sought, are as
follows:
i. The said decision by the Minister is unlawful, illegal, irrational
for the following reasons:
a. The hunting of wild life in Trinidad and Tobago has been a
settled practice for over sixty (60) years;
b. As a settled practice, the Minister and the members of the
Associations, comprising the Second-named Claimant, had
a legitimate expectation of the benefit of hunting wild life
in Trinidad and Tobago in the manner prescribed by the
Act;
c. The First-named Claimant and the members of the
Associations, comprising the Second-named Claimant, had
a legitimate expectation that their right to hunt would be
unjustifiably interfered with by the Respondents without
proper consultation between the parties or alternatively
that they had a legitimate expectation that they would
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2013-04146
IN THE MATTER OF AN APPLICATION BY BUDDIE GORDON MILLER AND THE
CONFEDERATION OF HUNTERS ASSOCIATIONS FOR CONSERVATION TRINIDAD
AND TOBAGO FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO
SECTION 5 OF THE JUDICIAL REVIEW ACT, CHAP. 7:08 OF THE LAWS OF TRINIDAD
AND TOBAGO AND PART 56.3 OF THE CIVIL PROCEEDINGS RULES 1998
AND
IN THE MATTER OF A DECISION DATED THE 25TH SEPTEMBER 2013 BY THE
MINISTER OF THE ENVIRONMENT AND WATER RESOURCES TO AMEND PARTS I, II
AND III OF THE SECOND SCHEDULE OF THE CONSERVATION OF WILD LIFE ACT,
CHAP. 67:01 OF THE LAWS OF TRINIDAD AND TOBAGO BY DELETING ALL OF THE
ANIMALS AND BIRDS PREVIOUSLY LISTED THEREIN
BETWEEN
BUDDIE GORDON MILLER
CONFEDERATION OF HUNTERS ASSOCIATION
FOR CONSERVATION TRINIDAD AND TOBAGO
APPLICANTS/ INTENDED CLAIMANTS
AND
THE HONOURABLE SENATOR GANGA SINGH, THE MINISTER OF THE
ENVIRONMENT AND WATER RESOURCES
JOHNNY SEEPERSAD, THE CHIEF GAME WARDEN
RESPONDENTS/ INTENDED DEFENDANTS
BEFORE THE HON. MADAME JUSTICE JOAN CHARLES
Appearances:
For the Claimant: Mr. N. Samnadda-Ramrekersingh, instructed by Mr. L. Murphy
and Ms. M. Clerk
For the Defendant: Mr. R. Martineau S.C., instructed by Mr. C. Moore, Mr. G. Ramdeen
And Ms. M. Benjamin
Date of Delivery: 20th March, 2014
DECISION
APPLICATION[1] By Application filed on the 18th October, 2013, the Applicants applied to
the Court for the following:
i. An Order pursuant to SECTION 6 of the JUDICIAL REVIEW
ACT, CHAP. 7:08 and PART 56.3 of the CIVIL PROCEEDINGS
RULES 1998 (“CPR”) for Leave to apply for Judicial Review of
the decision of the First-named Applicant (“the Minister”) dated
the 25th September, 2013 to amend Parts I, II and III of the Second
Schedule of the CONSERVATION OF WILD LIFE ACT, CHAP.
67:01 (“the Act”) by deleting animals and birds listed therein;
ii. An Order pursuant to SECTION 6 of the JUDICIAL REVIEW
ACT and PART 56.3 of the CPR for Leave to apply for Judicial
Review of the decision of the Minister to destroy the hunters’
camps throughout Trinidad and Tobago.
[2] The Applicants are seeking the following reliefs:
i. A Declaration that the decision of the Minister dated the 25th
September to amend PARTS I, II and III of the SECOND
SCHEDULE of the Act by deleting all of the animals and birds
previously listed therein is irrational, unreasonable and unlawful,
having been arrived at in circumstances which were procedurally
unfair and/or in breach of the rules of Natural Justice;
ii. An Order of certiorari to remove into the High Court and quash
the decision of the Minister dated the 25th September, 2013 to amend PARTS I, II and III of the SECOND SCHEDULE of the
Act by deleting all of the animals and the birds previously listed
therein;
iii. A Declaration that the decision of the Minister to destroy the
hunters’ camps throughout Trinidad and Tobago is unlawful
and/or illegal; and,
iv. Damages.
[3] The grounds upon which the foregoing reliefs are being sought, are as
follows:
i. The said decision by the Minister is unlawful, illegal, irrational
for the following reasons:
a. The hunting of wild life in Trinidad and Tobago has been a
settled practice for over sixty (60) years;
b. As a settled practice, the Minister and the members of the
Associations, comprising the Second-named Claimant, had
a legitimate expectation of the benefit of hunting wild life
in Trinidad and Tobago in the manner prescribed by the
Act;
c. The First-named Claimant and the members of the
Associations, comprising the Second-named Claimant, had
a legitimate expectation that their right to hunt would be
unjustifiably interfered with by the Respondents without
proper consultation between the parties or alternatively
that they had a legitimate expectation that they would
have consulted.
ii. The said decision by the Minister is unlawful, illegal, irrational
and unreasonable having been arrived at in circumstances which
were procedurally unfair and/or in breach of the Rules of
Natural Justice for the following reasons:
a. The Minister did not first consult the Applicants of the
basis upon which the said decision would be made such
that would permit them to prepare complete and informed
response to the proposed initiatives being considered. The
decision was therefore made without the relevant
considerations and enquiry;
b. The Applicants had a legitimate expectation that they
would have been consulted prior to the hunting
moratorium being imposed by the Minister. It is the duty
of the Minister to act fairly to those affected by the decision
by giving those persons an opportunity to be heard and to
state their reasons for objecting to the decision;
c. The Minister did not adequately address his mind to any
representations made by the Claimant and/or the effect
that the said decision would have had on them;
d. The Minister in all circumstances did not at any relevant
time adequately consult the Applicants prior to making the
said decision;
e. The Minister did not consult with the Wild Life
Conservation Committee, a statutory body, who pursuant
to SECTION 8 of the Act “shall act in an advisory capacity
to the Minister on all matters pertaining to the
conservation of wild life in Trinidad and Tobago”.
iii. The said decision by the Minister is irrational and/or
unreasonable for the following reasons:
a. The Minister did not consider relevant and current hunting
reports prior to making the said decision which could have
affected the overall fairness of the said decision;
b. The Minister utilised sub-optimal and dated data in
making the said decision;
c. The Minister made the said decision in circumstances
which did not consider the interest and/or direct adverse
effects that the said decision would have on the Claimant.
iv. In all the circumstances, the Minister by making the said decision
has ensured that the Applicants have been deprived of their
entitlement and their legitimate expectation to obtain a licence to
hunt whether as sport or as a means of sustaining a livelihood,
based on erroneous and antiquated data and without giving the
Claimant a proper opportunity to address any concerns it might
have had in relation to the same.
BACKGROUND
[4] Pursuant to SECTION 6 of the Act the Second-named Respondent (“the
Chief Game Warden”) is authorised to grant a licence in the prescribed
form to a person to hunt or be a member of a party engaged in hunting any
animal specified in the SECOND SCHEDULE of the Act for a period as
specified therein.
Further, SECTION 6 of the Act provides that no person other than the
holder of a licence may hunt any animal listed in the SECOND
SCHEDULE of the Act; permit any dog to enter upon lands belonging to
the State; or carry any gun or other weapon or device capable of being
used to hunt such animals within State lands. It is an offence under the Act
for any unlicenced person to do such acts.
Pursuant to the FIFTH SCHEDULE of the ACT, the “closed season” in
respect of hunting of all wild life is defined as the period from the 1st
April
to the 30th September in any given year.
[5] Prior to the 25th September, 2013, a licence was granted annually in respect
of the ‘Open Season’ to any person who presented themselves to the Office
of the Chief Game Warden and paid the prescribed licence fee of twenty
dollars ($20.00) per licence pursuant to REGULATION 3 of the
CONSERVATION OF WILD LIFE REGULATIONS.
[6] The Minister, upon request by the Applicants, convened a meeting with
them on the 7th August, 2013. The purpose of the meeting was for the
Applicants to seek clarification from the Minister as to the “Statements made
on National Television by Ms. Ramona Ramdial, Junior Minister in the Ministry
of Environment and Water Resources on the 8th July, 2013 that the hunting
season due to open on the 1st
of October 2013 would not be reopened for a period of
2 to 3 years” and the proposed destruction of the hunters’ camps.
[7] The Applicants contended that during the course of the meeting the
Minister represented to them that a decision in relation to the imposition of
the two-year hunting moratorium had not yet been made. Further, in
relation to the proposed destruction of the hunters’ camps, the Minister
initially stated that the reports in relation to this were false but eventually
stated that the hunters’ camps could only be sustained on a temporary
basis. The Applicants submitted two research papers entitled the “Value of
Hunting Camps” and the “Economics of hunting to rural communities” tot
the Minister for his consideration with a view to further discussions on the
matter.
[8] On the 15th August, 2013, the First-named Applicant wrote to the Minister
in an attempt to secure a second urgent meeting to discuss in further detail
the proposed initiatives that were addressed in the previous meeting.
There was no response to this letter.
[9] An open letter was written to the Minister on the 12th September, 2013 by
the First-named Applicant, which was also sent to each Member of the
House of Representatives and the Senate. The said letter outlined the
position of the Applicants in relation to the proposed hunting moratorium,
the proposed importation of wild meat into the Country, the promotion of
wild life farming and the destruction of hunters’ camps location within the
game sanctuaries.
[10] However, on the 15th September, 2013 the Minister during the course of a
post Cabinet Conference made a statement titled “Regarding the
Protection of Wild Life Resources” wherein he announced that the
Government was considering the imposition of a hunting moratorium as
part of “a series of landmark [sic] aimed at protecting the wildlife resources
of Trinidad and Tobago”.
[11] The Minister stated, inter alia, that the hunting moratorium which was
being considered for current imposition was based on the following:
i. Data analysis conducted by the University of the West Indies and
the University of Wisconsin of the Mandatory Hunting Return
Data Return Forms for the period 1990 to 1993 which revealed
that “the catching-hunting effort relationships of the agouti,
lappe, red brocket deer, quenk and tattoo had a consistent
negative relationship, suggesting the populations of these
animals were being over-exploited ... The University scientists
also concluded that such sustained rates of decline would lead to
local extinction of these populations within 25 years”.
ii. A subsequent survey by the University Researchers of the
Mandatory Return Data Forms up to 2005 produced a brief
report to the Conservator of Forests which “advised that there
continued to be a decline in hunter catch per unit efforts
indicators for the game species”.
iii. A survey of the Central Range Wildlife Sanctuary in 2007
commissioned by the Wild Life Conservation Committee in 2007.
iv. The Forestry Division “has indicated that there has been a steady
increase in annual hunting permits sales ... during 2010/2011
period 22,465 State Game Licences were sold in 2011/2012 –
18,990 were sold and in 2012/2013 – 21, 236 were sold”.
[12] According to SECTION 24 of the Act, the Minister may by Regulation,
inter alia, alter and amend the SECOND or THIRD SCHEDULE “by
adding thereto, or removing therefrom, the name of any animal and may
apply any such alteration to the whole of Trinidad and Tobago or confine
it to any district or other area thereof.
[13] By Legal Notice No. 206, dated the 25th September, 2013, cited as the
CONSERVATION OF WILD LIFE (AMENDMENT) REGULATION
2013, the Minister pursuant to SECTION 24 of the Act amended PARTS I,
II and III of the Act by deleting the animals and bird listed therein. The
practical effect of this decision was to classify all of the animals previously
listed in PART I, II and III as “protected animals”. Protected animals
according to SECTION 10 of the Act cannot be hunted except under a
Special Game Licence granted by the Chief Game Warden for “scientific
research, collection of specimens for zoological gardens, museums and
similar institutions” and “the eradication of animals declared to be vermin
by section 11”.
[14] In addition, the Minister amended REGULATION 8 of the
CONSERVATION OF WILD LIFE REGULATIONS of the Act by
“inserting after subregulation (3), the following subregulation:
4. The power of the Chief Game Warden to authorise hunting under
subregulation (1) is hereby suspended”.
[15] By letter dated the 10th October, Counsel for the Applicants wrote to the
Minister setting out, inter alia, the proposed claim against the Respondents
and requested that the information upon which the Minister arrived at his
decision be provided. The Minister did not acknowledge or respond to this
letter.
ANALYSIS
[16] The test to be applied by the Court on an Application for Leave for Judicial
Review is whether there is an arguable ground for review which has a
realistic prospect of success1. In Sharma v Brown-Antoine2, Lord Bingham
of Cornwall opined:
“The ordinary rule now is that the court will refuse leave to claim judicial
review unless satisfied that there is an arguable ground for judicial review
having a realistic prospect of success and not subject to a discretionary bar
such as delay or an alternative remedy ... But arguability cannot be judged
without reference to the nature and gravity of the issue to be argued. It is a
test which is flexible in its application ... It is not enough that a case is
potentially arguable: an Intended Claimant cannot plead potential
arguability to ‘justify the grant of leave to issue proceedings upon a
speculative basis which it is hoped the interlocutory processes of the court
may strengthen’: Matalulu v Director of Public Prosecutions [2003] 4 LRC
712 at 733.”
[17] The essence of the Applicants’ case is that:
i. They had a legitimate expectation that they would be able to
continue to enjoy the benefit of hunting wild life in accordance
with the Act;
ii. They, being a group that would be adversely affected by the
Legal Notice, had a legitimate expectation that their right to hunt
or the practice of hunting would not be unjustifiably interfered
with without proper and/or adequate consultation;
iii. They had a legitimate expectation that they would have been
consulted with and/or adequately consulted prior to the making
of the Minister’s decision.
CONSULTATION
[18] The Respondents contend that there was adequate consultation with the
Applicants before the decision made by the Minister. They stated that there
was public consultation, acknowledged by the Applicants in their
Affidavit filed on the 18th October, 2013, in addition to a request by the
Applicants for comments and the submission of reports on the matter. It
was further submitted by the Respondents that the fact that no decision
was yet made was no reason for fairness to require more than was done.
Good public administration requires not only finality but also that matters
be dealt with at a reasonable speed: R v Monopolies and Merger
Commission ex parte Argyll Group PLC3.
[19] It could be said to be best practice, in modern thinking, that before an
administrative decision is made there should consultation in some form,
with those who will clearly be adversely affected by the decision. But
Judicial Review is not granted for a mere failure to follow best practice. It
has to be shown that the failure to consult amounts to a failure by the local
authority to discharge its admitted duty to act fairly. The Minister is a
person having legal authority to determine a question affecting the rights
of individuals. This being so, it is a necessary implication that he is
required to observe the principles of Natural Justice when exercising that
authority.4
[20] In R v North and East Devon Health Authority ex parte Coughlan5, Lord
Woolf M.R. discussed the importance of consultation and opined:
“... whether or not consultation of interested parties and the public is a
legal requirement if it is embarked upon it must be carried out properly. To
be proper, consultation must be undertaken at a time when proposals are
still at a formative stage; it must include sufficient reasons for particular
proposals to allow those consulted to give intelligent consideration and an
intelligent response; adequate time must be given for this purpose; and the
product of consultation must be conscientiously taken into account when
the ultimate decision is taken.”
Legal standards require that a consultation exercise (1) be conducted at a
time when proposals are at a sufficiently formative stage, (2) with
adequate information and time to allow a proper and informed response,
and (3) leading to a conscientious and open-minded consideration of
relevant matters.6
[21] From the evidence before me, it is clear that the Respondents embarked
upon consultation with the Applicants and having proceeded to do so,
such consultation should have been conducted properly and adequately.
This duty to consult is not confined to a singular meeting or discussion but
rather than which fully ventilates the matter(s) at hand. It is not disputed
that the Respondents convened a meeting with the Applicants to discuss
the proposed moratorium. Subsequent to this meeting, the Applicants tried
to no avail to seek audience with the Minister to discuss further issues
regarding the (then) proposed moratorium. This, in my view, is inadequate
consultation. There were clearly other issues that needed to be discussed
and/or resolved between the parties which were not adequately addressed
and ventilated.
LEGITIMATE EXPECTATION
[22] The Respondents submitted that the Applicants did not have any
legitimate expectation. The fact that they were told on the 7th August, 2013
that the decision to impose a two-year moratorium was not yet made did
not mean the Minister would not take the decision without further
consultation. Rather, it could be a “hope” and not a legitimate expectation
on the part of the Minister that he would not have done so.
[23] Legitimate expectation is defined as an expectation which, although not
amounting to an enforceable right, is founded on a reasonable assumption
which is capable of being protected in public law. It enables a citizen to
challenge a decision which deprives him of an expectation founded on a
reasonable basis that his claim would be dealt with in a particular way.7
[24] The terms of the representation by the decision-maker (whether express or
implied from past practice) must entitle the party to whom it is addressed
to expect, legitimately, one of two things:
i. That a hearing or other appropriate procedures will be afforded
before the decision is made, or
ii. That a benefit of a substantive nature will be granted or, if the
person is already in receipt of the benefit, that it will be continued
and not be substantially varied.8
[25] It is well-known that the practice of hunting has existed for centuries as a
means through which persons provide for themselves and their families.
This practice also pre-dates the Act and its commencement. Therefore, the
Applicants had a legitimate expectation, through practice, that should
there be a ban on hunting, even on a temporary basis, they would be
properly consulted and their opinions taken into consideration given the
fact that many of them depend on hunting animals as a means of living
and providing for their families.
[26] Based on the evidence before me, the Applicants were not given an
adequate opportunity to put forward their views and/or objections on the
matter. Several requests were made to contact the Minister both prior to
and after his decision to place a moratorium on hunting but no response
was given by the Minister. Nor was there any other meeting with the
Applicants after that of the 7th August, 2013 despite the Applicants giving
the Minister material to review on the then proposed ban. No reason was
given by the Minister as to why he never responded to the
communications sent by the Applicants.
[27] In R v Home Secretary ex parte Doody9, Lord Mustill expounded on the
importance of fairly executing an administrative power and opined:
“... (1) where an Act of Parliament confers an administrative power there is
a presumption that it will be exercised in a manner which is fair in all the
circumstances. (2) The standards of fairness are not immutable. They may
change with the passage of time, both in the general and in their application
to decision of a particular type. (3) The principles of fairness are not be
applied by rote identically in every situation. What fairness demands is
dependent on the context of the decision, and this is to be taken into account
in all aspects ... (5) Fairness will often require that a person who may be
adversely affected by the decision will have an opportunity to make
representations on his own behalf either before the decision is taken with a
view to producing a favourable result; or after it is taken, with a view to
procuring its modification; or both ...”
[28] I am of the view that the Applicants have raised several arguable grounds
with a realistic prospect for success for a Judicial Review of the decision of
the Defendant dated 25th September 2013 to amend Parts I, II and III of the
CONSERVATION OF WILD LIFE ACT.
CONCLUSION
[29] In the circumstances, I order that:
i. Leave for Judicial Review of the decision of the First-named
Respondent dated the 25th September, 2013 to amend PARTS I, II
and III of the CONSERVATION OF WILD LIFE ACT by
deleting the animals and birds listed therein is granted;
ii. The Respondents to pay the Applicants’ costs of this Application,
to be assessed in default of agreement by a Master in Chambers.
JOAN CHARLES
JUDGE
No comments:
Post a Comment