Environmental protection of Nariva Swamp and Guiana Island: the need forthe greening of caribbean constitutions

• Author: Winston Anderson
• Position: Ph.D (Cantab); Attorney and Barrister-at-Law
• Pages: 224-239

ENVIRONMENTAL

PROTECTION OF NARIVA

SWAMP AND GUIANA ISLAND:

THE NEED FORTHE GREENING OF

CARIBBEAN CONSTITUTIONS

WINSTON

ANDERSON*

INTRODUCTION

Two recent Caribbean decisions are noteworthy because they explicate the

relevance of the constitution to the regions emerging programme of environ-

mental management. The first was the Trinidad and Tobago High Court

decision of Jabar v Dr. Keith

Rowley,

The Minister of Agriculture, Lands and

Marine

Resources

(Nariva Swamp case).1 In this case the applicants' assertion

of private property rights, protected by well-known constitutional guarantees,

mounted a formidable challenge to the power of government to take legal and

administrative measures to protect fragile ecological resources in the Nariva

Swamp. That the challenge was successfully faced down should be cold comfort

to environmentalists because the grounds on which this was done were

debatable to say the least. The second was the Eastern Caribbean Court of

Appeal decision in Spencer v. Attorney-General of Antigua and Barbuda and

Asian Village Antigua Ltd (Guiana Island

case).2

Here the applicant sought to

*Ph.D

(Cantab);

Attorney and

Barrister-at-Law;

Senior Lecturer in Law in the Faculty

of

Law,

University

of

West

Indies, with special interest in international Law

(Private

and Public) and

Environmental

Law (International and

Caribbean);

Acting

Executive

Director, Caribbean Law

Institute

Centre (CLIC).

1

Unreported decision

of

the

High Court

of

Justice,

Trinidad and Tobago, No.630 of

1993.

Dated:

July 28, 1993.

2

Unreported decision

of

the

Court of

Appeal,

Antigua and Barbuda, Civ. App. No.

20A

of

1997.

Dated: April 8, 1998.

overturn a governmental decision to permit a massive tourism project on

Guiana Island and other islands and lands on the west coast of Antigua because,

inter alia, of the project's likely harmfulness to the environment. In rejecting

the application the court made dear that nothing in the constitution inhibited

the government from permitting development that caused environmental

harm. Accordingly, both in terms of restricting the power of government to

protect the environment, and in giving the government unrestricted license to

permit environmental injury, there appears to be an urgent need for a review

of how Caribbean constitutions treat with the Caribbean environment.

THE

NARIVA SWAMP

CASE

Trinidad and Tobago has several wedands but the countrys' only freshwater

wetland is the Nariva Swamp. The swamp is a large and diverse ecosystem,

renowned for its unique flora, fauna, and species of animals, which includes

the manatee, birds, snakes and a variety of fish. The special features in the

ecosystem attract intense international scientific research, eco-tourists and

local visitors. With the accession in 1992 of Trinidad and Tobago to the

Ramsar Convention on Wedands of International Importance Especially as

Waterfowl Habitat, the Nariva Swamp was designated as a wetland of inter-

national significance.3

Notwithstanding these ecological features, there has for over forty years been

some agricultural development on the periphery of the swamp (specifically rice

cultivation)- The Bush Bush Wildlife Sanctuary comprising some

3*840

acres

appears to have been subjected to agricultural intervention from at least 1986

when Mr. Goolcharan Jabar (also known as Vishnu Jabar), and others, went

into occupation primarily for the purpose of rice cultivation. The applicants

had been encouraged to do so by the former Minister responsible for agricul-

ture who had publicly recognized the important contribution that the rice

farmers were making towards feeding the nation. The Minister was alleged to

have promised them leases of the lands. As further evidence of the Government's complicity, the applicants pointed to the contractual arrangement

between themselves and the National Flour Mills Limited, a company wholly

3

Trinidad and

Tobago acceded

to the Convention on December 21,1992 and the designation

of Nariva Swamp

became effective on April

21,

1993.