Durrant Pate/Contributor

The Privy Council has delivered a big environmental ruling for the tiny Caribbean island of Barbuda, which has implications for other islands across the region.

The London-based court has ruled that two residents of Barbuda, marine biologist John Mussington and retired teacher Jacklyn Frank, have the right to challenge the construction of an airstrip they say endangers fragile ecosystems and was begun without any permits.

The Privy Council ruling is considered a big win for both petitioners, who had launched a legal fight against the government of the twin-island nation of Antigua and Barbuda in July 2018. 

Precedent for Caribbean nations

The ruling is expected to set a precedent for other Caribbean nations fighting to protect land that wealthy foreign developers seek to develop, especially after investors seize upon economic opportunities following a catastrophe or national disaster. The government of Antigua and Barbuda had argued that Mussington and Frank had no standing to mount a legal fight.

One of the UK attorneys representing the Barbudans, Leslie Thomas, has said the plaintiffs now plan to ask the government to tear down what has been built. “This is a real David and Goliath battle,” Thomas said, adding, “we’re up for another big fight.”

Mussington said the ruling would have “significant implications for citizens of Antigua and Barbuda who have long been suffering from the lack of transparency and accountability from key institutions and officials charged with implementing the planning laws.”

A spokesperson for the office of Prime Minister Gaston Browne and a representative for the development did not respond to messages seeking comment about the decision.

Sarah O’Malley, an attorney with the UK-based nonprofit Global Legal Action Network, which helped attorneys representing the Barbudians, noted that it took nearly six years to reach the verdict.

According to her, “environmental activists around the globe are often bogged down with procedural impediments making litigation costly and time-consuming, a subterfuge employed by those destroying the environment for their own profit.” 

Challenging government actions

However, O’Malley has said the decision would make it easier for “all who seek to protect nature” to legally challenge government actions. The ruling by the Privy Council allows the two Barbudians to challenge an April 2021 decision by the Court of Appeal of the Eastern Caribbean Supreme Court that found the residents were not allowed to take legal action against the government.

One Privy Council judge, David Hope, argued that environmental issues can be raised by someone even if they are not personally affected by a certain action. He gave an example of construction of wind turbines on a route used by an osprey.

“The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected, someone has to be allowed to speak on its behalf,” Hope wrote in his ruling

The ongoing airport construction on Barbuda is part of a deal involving the government, the Barbuda Council and PLH (Barbuda) Ltd., established by U.S. billionaire John Paul DeJoria, co-founder of the Paul Mitchell hair products company. Also involved is U.S.-based Discovery Land Co., founded by Michael Meldman of Casamigos Tequila.

Unlawful construction

The companies plan to build 495 upscale homes, an 18-hole golf course, a beach club and a natural gas storage facility on more than 600 acres (240 hectares) of protected wetland.

The developers began work on the airstrip around September 2017 but as it turns out, the airport was being built without the proper permissions. Construction also began without an environmental impact assessment or a license from the Barbuda Council to clear forest, according to Global Legal Action Network.

In addition, there were no public meetings notifying anyone of the construction, and an application for a development permit wasn’t submitted until after construction began. About 400 acres (160 hectares) is home to the Barbuda fallow deer and red-footed tortoise already have been cleared to build the airport.

Mussington and Frank also have argued the construction could impact the island’s groundwater supply. The airstrip is largely completed, and government officials have said that “even if the airstrip was built in violation of development control the airstrip could not be ‘unbuilt,’” according to Monday’s ruling.

The Privy Council noted that if a court finds that the government’s Development Control Authority acted outside of its power, “the remedies potentially available would include an order requiring the land be restored to its original state.”

Mussington and Frank celebrated the ruling, but Frank remained cautious. Another lawsuit filed by a fisherman and tour guide against the government of Antigua and Barbuda over construction of two private villas in a national park is pending in court.