By Kenicia Francis
Two Barbudan environmental activists who fought against the construction of Barbuda’s international airport and won their case at the country’s final appellate court, the Privy Council, have gained international recognition’
John Mussington and Jackie Frank were invited to participate in a conference on the Escazú Agreement which is currently taking place in Chile.
The Escazú Agreement which assisted them in win their campaign, was established in 2018 during the United Nations Conference on Sustainable Development.
The agreement is a treaty that focusses on protecting environmental activism and promoting environmental justice in Latin America and the Caribbean.
It aims to safeguard activists from threats and violence and encourages public involvement in the decision-making process.
Twenty-four countries across the region have signed the agreement, including the government of Antigua and Barbuda.
During the conference, Mussington raised an issue that’s directly affecting Barbuda.
“This is a concern I’m raising in this forum, which has to do with access to the justice system,” he told Observer.
“This is a concern from environmental defenders in the entire Eastern Caribbean. The issue is about getting interim injunctions given the requirement for undertakings and damages.”
He explained that the Eastern Caribbean Civil Procedures, directives that guide how civil cases are handled, has a specific rule that is a hindrance to advocates.
The rule makes activists promise, in writing, that they’ll pay for any damages caused by court-ordered temporary holds later found to be wrongful.
“This has proven a serious barrier to activists attempting to halt harmful developments being carried out in both Barbuda and Granada. Given a lack of funding, they are unable to seek interim injunctions in their cases,” he said.
“Their only option would be to set out their finances in detail, and how they couldn’t afford to give an undertaking. We’re talking about millions of dollars being required that you have to guarantee.”
The Barbudan activist highlighted an article in the Escazú Agreement that requires countries that have signed the agreement to allow for precautionary and interim measures to prevent, stop, reduce, or repair environmental damage.
“The state has an obligation on article 84A to establish measures to minimise or eliminate barriers to exercise rights of access to justice. Now, harmful developments continue whenever activists decide that they’re going to challenge through legislation in the state,” he said.
Mussington claims that the article is what allowed him and Frank to take their case against the Central Government to the Privy Council.
“The Privy Council happens to be the apex court throughout the Eastern Caribbean jurisdiction. This poses at least three problems with respect to access to justice — it’s a financial burden, it deters people from taking legal action, and there’s a risk of retaliation,” he said.
However, he offered some solutions to the initial issue he raised.
He suggested aligning our civil procedure rules with the Escazú Agreement, as well as focussing on training judges and providing resources to activists to challenge these rules and get appeals to the Privy Council to work towards ensuring that the rules are in line with the agreement.