Wednesday, 28 May 2014

BUDDIE GORDON MILLER CONFEDERATION OF HUNTERS ASSOCIATION FOR CONSERVATION TRINIDAD AND TOBAGO vs THE HONOURABLE SENATOR GANGA SINGH, THE MINISTER OF THE ENVIRONMENT AND WATER RESOURCES JOHNNY SEEPERSAD, THE CHIEF GAME WARDEN (2014) JUDICIAL REVIEW CONCLUSION



http://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/charles/2013/cv_13_04146DD20mar2014.pdf

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 

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