British Virgin Islands Heritage Conservation Group

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Above picture showing Beef Island, Trellis Bay, and Hans Creek supplied

Letter to the Editor in response to Oil Nut Bay: Received by us May 31st

WHAT WAS NOT SAID ABOUT OIL NUT BAY

After studying the Beef Island Case and its ecological ramifications, I am dismayed that an Environmental Impact Assessment (EIA) was not required for Oil Nut Bay. While it is true a resort this size will contribute somewhat to the economy, developer David Johnson of Victor International has presented an idealized, if not one-sided view of what is happening in one of the most remote areas of the territory. This situation should be a wake-up call to Town and Country, the Planning Authority, Government and the National Park Trust, all of whom are complicit in the destruction of Oil Nut Bay. Coordination, acting swiftly and enforcement of laws would have protected key pristine areas of Virgin Gorda while moving towards sustainable development.

Town and Country’s explanation for not having an EIA was that approval for development was given in the early 2000s to the Hendersons, the original developers, before EIAs were required under the 2004 Physical Planning Act. The original plan called for a “simple low density, residential subdivision consisting of 10 boathouses, 16 residential units supported by a clubhouse, docks, service area, limited roads and infrastructure and the possibility of a small medical or research centre”. At the time, a coastal study by a noted biologist described the shoreline as impressively healthy, diverse and intact recommending it as a marine-protected area. In the 1980’s, ONB was also nominated as a potential national park. Even “co-management” with the National Park Trust was explored. An environmental management plan, in any case was clearly requested according to Mr. Potter.

Enter Victor International in 2006 , coincidently, the year it purchased Biras Creek in North Sound, site of its new marina with access to the peninsula- (and at a time when the previous chief minister was signing away the territory to 5-star hotels). Victor International’s 2007 Planning agreement, purportedly in partnership with the Hendersons, acknowledged a possible need for an EIA, but evidently was never required because development permission had previously been granted for the old plan.

Two Points:
1) A serious environmentalist would have commissioned an EIA anyway REGARDLESS of previously cut roads and docks empty for 6-8 years. There was still enough original ecosystem left to monitor. (So happens that the Environmental Team Leader for Oil Nut Bay is an ex- CEO of Chrysler Global Electric Cars, a far cry from a biologist with 20 years of Caribbean field experience).
2) What Victor International is building- (27 homes, 9 beach villas with 9 pools, 7 huge ridge villas, tennis courts, boutique, restaurants, groceries, shopping, mega-yacht marina for 88 boats, helipad, ocean villas in the water)- it is no longer the same project agreed to! As a new LARGER Resort, the government should have insisted on a NEW survey of the area which is now under siege, regardless of the sophisticated prose on Oil Nut Bay’s website.

Terms like “re-engineered” means changes, clearing, excavation and filling or altering as in the case of the salt pond. Coral rubble has been removed in violation of the Beach Protection Ordinance. Permission was given naively for the “beach enhancement project” knowing there was no EIA. The catchy term, “enhanced” often means introduction of exotic materials to create an idealized environment. In this case, palm trees where there were none, and 5000 tons of sand from Barbuda were imported. Unfortunately, heavy machinery crushed two endangered hawksbill sea turtle two hatchlings in violation of the VI Fisheries Regulations Act 2004. This could have been avoided with knowledge of the beach. And also misleading in the developer’s presentation is the 150 acres being set aside as conservation area which is rock and un-buildable anyway.

There are so many disturbing nuances about how this project is progressing so quickly, it is mind-boggling. Why are the Government’s environmental and planning agencies silent as another potential marine protected area vanishes. Why are foreign investors for this particular development privileged with a 90-day automatic approval for a landholder’s license? I implore the National Park Trust to officially preserve the last proposed Marine-protected areas, some designated for over 25 years, before they are lost to development. Protection HAS to be done district by district to speed the process. And let’s hope Town and Country finds a competent and strong director soon to combat violations and to assure sustainable development as a matter of law, not politics. Seems with distant Oil Nut Bay, it’s out of sight, out of mind.

Susan O Smith, West End, Tortola

Update April 29th

Latest: Historic Beef Island Environmental case begins on Tortola: BVI Platinum is carrying an article on it here. The VIEC is Cautiously optimistic, however, a decision may take several months to be handed down by the court. You can also go here for the article written on it in the BVI Beacon

Update April 22nd

BAHAMAS-INSPIRED ENVIRONMENTAL CASE COMES TO TRIAL

A landmark environmental case in the British Virgin Islands, that was inspired in part by the Save the Guana Cay Reef action in the Bahamas, will be heard in the Virgin Islands High Court from 27th - 29th April 2009. The case Virgin Islands Environmental Council v Attorney General and Another sets a precedent in the BVI as the first environmental and public-interest challenge to a government decision. It involves judicial review of the former NDP Government’s planning approval for a 5-star hotel, marina and golf course that would destroy the scientifically documented biologically important Hans Creek Fisheries Protected Area in Beef Island, British Virgin Islands. Legal issues in the case center around the irrationality of the decision in light of an over-arching “Development Agreement” which pre-approved many of the project components, and the illegality of project approval in blatant contravention of the Fisheries Law prohibiting development that would adversely impact a fisheries protected area.

The case is being fought by the Virgin Islands Environmental Council (VIEC), a coalition of local fishermen, concerned residents, scientists and environmental activists. The politically charged issue came to a head during an election year. When local lawyers refused to assist, the group reached out to Mr. Fred Smith, Freeport attorney for Save Guana Cay Reef, who was the first attorney to give the group a legal opinion on the merits of their case. His timely encouragement and advice enabled VIEC to file their claim against the decision within the six-month time limit for bringing judicial review. This advice was crucial because compliance with the limitation period was challenged as a preliminary point up to the Court of Appeal of Eastern Caribbean States. In November 2008 the OECS Court of Appeal handed down a ruling upholding the decision of Justice Olivetti in the BVI High Court that the application for leave “commenced” an action under the new Civil Procedure Rules. Therefore, the claim was filed in time and the case could proceed to trial.

Due to numerous other commitments, Mr. Smith was unable to provide further legal assistance. Fortunately, the VIEC through the efforts of its legal director, Mumta Ito, was able to secure the services of London counsel, Mr. Stephen Hockman QC, former Chairman of the UK Bar Council and previous Chairman of the Environmental Law Foundation. The case has received international attention and acclaim, including the support of Sir Richard Branson, owner of Virgin Atlantic Airways and Mosquito and Necker Islands in the BVI. Sir Richard provides discounted flights on his airline for the legal team flying in from the UK. Funding the legal action, however, continues to be a major challenge. In this regard, the VIEC has been fortunate to receive the assistance of the Cambridge-based Ocean River Institute (ORI) a registered US Charity that provides support services for small environmental groups to take action in their own communities. In addition to raising tens of thousands of dollars to cover legal expenses, ORI has been instrumental in raising awareness around the world including an international petition with over 18,000 signatures and letters from individuals in support of the VIEC.

Save Guana Cay Reef and the Beef Island case are just two Caribbean island examples of a world-wide phenomena - the struggle of local peoples and small land-owners against the powerful alliances of unscrupulous developers and politicians and their mega-resort and real estate development projects with the enormous problems they cause for society and the environment. To borrow the words of the 2009 Declaration of Belem made at the World Social Forum in Brazil, these legal cases represent “the legitimate expression of struggle and resistance by communities against the current conventional unsustainable model of tourism and speculative real estate development.” They represent a struggle to promote tourism models that value ecosystem survival, local communities, traditional culture and the way of life.

During the April 27 - 29 hearing, it is expected that novel areas of law will be judicially considered that will affect the future of sustainable development, planning policy, and the status of protected areas in the BVI and throughout the Caribbean. Whatever is decided is likely to be appealed, and the legal struggle to Save Beef Island is expected to continue through the Virgin Islands-OECS court system right up to the level of the Privy Council.

Also see this link here for the active discussion in the British Virgin Islands from VIEC letter "In defense of Beef Island"

Update April 17th, 2009

The BVI’s first environmental case – Virgin Islands Environmental Council v Attorney General and Another – will be finally coming up for trial after a one and a half year wait. The three day trial will take place at the High Court in Road Town from Monday 27 April. A positive outcome in favour of upholding the environmental and planning laws of the territory to preserve the unique ecology of Beef Island for generations to come will make history in the BVI and also positively influence environmental law, planning and policy throughout the Caribbean.

VIEC – BEEF ISLAND PROJECT EXECUTIVE SUMMARY

What is the project?

Bringing the first ever environmental case in the British Virgin Islands against the government to reverse planning permission awarded to put a large scale luxury golf course and marina resort in a protected area of international ecological importance.

Why is this case important?

• The outcome will determine the status of protected areas in the BVI and throughout the Caribbean
• Novel areas of law will be judicially considered that will affect the future of sustainable development and planning policy in BVI and throughout the Caribbean.
• This is the first case brought by a charity in the public interest in the BVI – and the first time that the public have opposed the government in a court of law – this sets an important precedent with regard to the rights of public interest groups to environmental democracy in the Caribbean where such rights are not as recognised or exercised as in the developed world.
• The correct procedure set out in the Planning Act for the protection of the environment wasn’t followed by the government in granting the permission – if this goes unchecked it effectively places the government above the law.
• An Order was passed allowing the Minister to approve all projects over USD10m unilaterally; the Minister entered into a development agreement with the developers that gives concessions such as the granting of planning permission and procurement of immigration permits etc that does not accord with legislation – this has been replicated subsequently in other large scale projects currently going through planning and will continue if unchecked.
• The protected areas concerned are of international ecological importance (the subject of numerous studies, assigned a RAMSAR code and included in the National Parks Systems Plan for the BVI for over 25 years).
• The protected area is a breeding ground for commercially important species of fish and so its loss would mean the annihilation of the BVI fishing industry too.
• There are considerable adverse social implications involving providing infrastructure to cope with the large number of immigrants required to staff this project on-goingly and during the construction phase that will put further pressure on the environment.

Who is bringing the case?

Virgin Islands Environmental Council – a BVI company limited by guarantee with charitable objects for the protection of the environment and environmental democracy. The organisation is staffed exclusively by volunteers and spearheaded by Dr Quincy Lettsome, a well respected educator in the BVI community. Its member organisations are other environmental NGOs active in the BVI.

Is VIEC a registered charity?

There is no system of registering charities in BVI – however, VIEC are working together with ORI, a US registered charity for the protection of the environment and all donations and payments are made through ORI.

What have VIEC achieved so far?

• The trial has been split into 2 stages – VIEC have won the first stage
• 2 developers have pulled out of other equally environmentally damaging projects that were going through planning at the time the law suit was filed
• The government had agreed last January to officially give the protected areas concerned National Park status
• The developers on this project are redrawing plans for submission omitting the contentious golf course and marina elements
• A petition campaign to raised 10,000 letters from US tourists which was presented to the Premier at a press conference asking the Premier to consent to quash the decision, withdraw from the case and protect Beef Island from unsuitable development last year.

Why VIEC expects to win

• The opposition’s defence is evidentially and legally weak.
• The present government won a landslide victory on their election promise to revisit the Beef Island decision and protect the environment which demonstrates their commitment to adhering to the environmental laws of the territory
• We have one of the most respected and experienced environmental lawyers in the world – Mr Stephen Hockman QC – Ex-Chairman of the UK Bar Council and previous Chairman of the Environmental Law Foundation, representing us at trial.

When is the trial?

The 3 day trial will take place at the Supreme Court in Road Town from 27-29 April inclusive.

Further Information
For further information on the Virgin Islands Environmental Council and the Beef Island case visit http://www.oceanriver.org/virgin_islands.php.

AND, also a letter to the editor that was passed to me today as well...

April 16th, 2009
LETTER TO THE EDITOR

THE BEEF ISLAND COURT CASE

As the world celebrates Earth Day (April 22nd), next week’s preparations are being made for the much anticipated Beef Island court case. The vigilant VI Environmental Council (VIEC), a group of concerned citizens, scientists and biologists, challenged the development violating the Fisheries Regulations Act and Planning Act. The Fisheries Regulations Act states, “No person shall carry out any development activity, which may or is likely to adversely impact on a marine protected area”. The Planning Act says that a development has to obey all written laws of the territory.

The Beef Island Documentary of 2005 brought to the forefront, Hans Creek and its value as a rare eco-system supplying almost 80% of the territory’s commercial fish and few remaining mangroves. To lose this pristine portion of the BVI would impact livelihoods, migration paths, and fish nurseries as collateral damage to an exclusive resort for the rich and insulated.

A win of this court case will determine whether laws were broken and may send developers back to the drawing board for new more eco-friendly plans. More importantly, a win of this court case would set the precedent for the whole Caribbean basin that when governments fail to protect natural resources locals come together and speak up and hold developers accountable.

The VIEC came together, in the spirit of Noel Lloyd and the Positive Action Committee, motivated by the real threat of destruction of natural resources, vistas, fish and wildlife. VIEC is looking for wise, more sustainable development for future generations. The BVI are making history in this regard. What a way to acknowledge Earth Day.

Susan O. Smith

Update April 10, 2009

There has been a lot of talk going on in the last couple days regarding Beef Island and it's long proposed development, since the opposition Minister (Dr. Smith, NDP) made a statement dissing the current government (VIP) for not standing up adequately for the 5 star hotel, marina, golf course and whatever else they are hoping to build on Beef Island.
Some of you may recall that the Virgin Islands Environmental Council is in the midst of a landmark court case protesting the development of a fisheries protected area (Hans Creek). The Standpoint Online published an article summarizing it recently, which I have added to the bottom of this blog entry.

Dr Smith's statement is actually very helpful for the VIEC (Virgin Islands Environmental Council) as many people had thought the court case was over and finished. AND that the VIEC had won.
The true story is that the developers and government appealed technical issues on whether the case COULD even be tried in court, and lost. The court case, is scheduled to go to trial at the end of April, and much more money needs to be raised for the ongoing case.

There has been a lively debate on BVI Platinum (follow this link) with most people lining up against Dr Smith's views, and indeed asking why he is still flogging this. It is a very interesting read. I am quoting a couple of the responses there that seem to have a keen insight into the case.
"This particular development harms another sector of our population and has long term affects for the rest of the caribbean. We have a big fishing population. government is promoting big deep sea fishing. the fish spawned at Beef island migrate to other parts of the caribbean which will affect their fishing industry. Beef Island is on the flght path of migrating birds who have no other place to stop or are conditioned to stop here. livlihoods down island will begin to die. but gee who can prove it? there is a direct cause and affect with this particular project which can not be ignored. this aside...
Dr Smith and his cronies (who equally had a game plan) broke the law. no one is above the law. they are there to protect society. Also now in the new constitution is that the premier alone has the right to approve all developments exceeding $10 mil, which would take in EVERY development but a boutique hotel. He gets to dictate how and what is to be built, technically. That is bad business because as we have seen, if the government doesn't listen to its people, it becomes a dictatorship by a handful of elite and powerful men (and women).
Further, given foreign labor, its need for housing (already in short supply) its need for health care, education of families, strain on infastructure, adding to the population after 5-10 yrs on the job (who's going to send them home?)- this particular aspect was not thought through. like it or not, outside companies bring in their own trained upper management with maybe some token locals to fulfull requirements. stamp tax will be waved costing $millions over the years.
AND- as mentioned, there were alternative suggestions to this inappropriate plan, proving that protesters were willing to support something there. Unfortunately, this plan also affects sea grasses and turtle habitats... something people roll their eyes at.
This case is going to court. If the court rules against the developer and by extension, the former cheif minister, that proves that he overstepped his bounds legally. "

Most on island accommodation managers will tell you that business is down approximately 35% this winter. How can we possibly need more high end accommodation when we cannot even fill up what we have?
In one email today passed around through the yachts of the BVI Charter Yacht Society, who have been supportive of the court case, the amount estimated to be needed was as below:
"For those wondering what is happening at Beef there will be the main court case the end of April. Funds are continually required to help the Virgin Islands Environmental Council pay the travel expenses, accommodation and other incurred expenses of the lawyers who come out from the UK. The lawyers are doing the case pro bono for the VIEC. Each court case costs the VIEC approx $25000 in expenses.
In the past members of crewed yachts have been very supportive in helping raise funds. If any of you have access to clients or owners who are looking to donate to the case to help cover costs please contact the VIEC. The VIEC is working through Ocean River Institute in the USA who can route funding thru their organization for USA citizens to get 501 c ( tax deductible) status. All donated money ( 100%) makes it to the case - no one skims comissions off the top!!!

The VIEC is expecting that after this case there will be two more cases that will take it eventually to the privy council in the UK. To cover expenses for 3 cases including the one the end of April the VIEC will require about $95000. This is a land mark case not only for the BVI but also for the Overseas Territories and the Caribbean as a whole. The VIEC is currently looking for funders to match a $15000 donation from a Foundation in the USA. "

Ocean River Institute processes donations for the court case which are tax deductible, please help if you are able, and keep the momentum going on this very important case.

Thumbnail panels:

Two fledgling groups (VIEC and ORI) and a coalition of local groups raise awareness here and far away of the plight of Beef Island BVI.

This is very exciting news for us at BVIHCG and the VIEC! The Ocean River Institute, is first to practice environmental subsidiarity in collaboration with others, to assist groups closest to wildlife and natural areas, to educate more widely, and to advance ecosystem-based adaptive management with greater public participation.

The Ocean River Institute a new environmental organization based in Massachusetts is taking the lead at using its communities and connections to raise thousands of individuals concerned with the fate of Beef Island. 8,000 people of Tortola, BVI; Boston Massachusetts, and beyond are concerned with how the Premier is deciding for Beef Island mangroves, salt pond, Hans Creek and coral reef habitats for wildlife and tourists. Ocean River Institute is facilitating the VIEC's collection of signed letters to Premier O'Neal. Have you signed your letter yet today by going here?