Photo: Hon. Orlando Habet.

Lucy Fleming, the appointed nominee to take Senator Kevin Herrera’s place has since announced that she has declined the offer to participate in the Tribunal. A constitutional lawsuit from the Ashcroft Alliance asserts that Minister Orlando Habet’s nomination of Fleming and Hughes was done in bad faith to disadvantage Waterloo in the appeal process.

by Marco Lopez

BELIZE CITY, Mon. Mar. 20, 2023

Seven declarations are being sought by the Ashcroft Alliance in a constitutional claim filed last week Thursday against the Minister of Sustainable Development, Hon. Orlando Habet, and the Attorney General. Attorneys for Waterloo Investments Holdings Limited (Waterloo) have requested a striking down of Section 2 of the recently enacted Statutory Instrument (SI) 23 of 2023.

The SI which amended section 27(a) of the Environmental Impact Assessment Regulations provided for the removal of Senator Kevin Herrera from the Waterloo Appeal Tribunal following the indication of familial ties with a Waterloo lead developer, Allan Herrera. The amendment gave the minister authority to choose an alternate representative and Senator Herrera was replaced by Lucy Fleming, according to a March 2 press release from the Department of the Environment (DOE). Marine biologist and reef health expert Terrence Hughes was also chosen by Minister Habet.

Fleming has since publicly disassociated herself from the Tribunal, and she says that she was never a part of it. She noted in a Facebook post published early this morning, that she was asked to participate in the Tribunal but ultimately decided to refuse, given her family’s current very public battle to secure justice for their slayed loved one, 14-year-old Laddie Gillett.

“Facing what we – the family and the Foundation expected, was the imminent culmination of a long campaign to secure justice for Laddie, while at the same time positioning the Foundation to be successful in helping Belizean youth and furthering his legacy, I realized that, in fairness to the Tribunal role, the Foundation, and myself, I did not have the energy, resources, and overall capacity to properly fulfill the demand required to do the role justice. I hope I’ve clarified the circumstances surrounding my non-acceptance (as opposed to “stepping down”) from a position I was honored to have been nominated for,” Fleming expressed in her clarification. 

The affidavit cites several letters and articles from Fleming where she makes strong comments on the cruise industry. We note that this was in the era of the controversial Carnival Contract, and her protest came largely as the President of the BTIA at the time. In an article published by the Toronto Star in January 2010, Fleming told the publication that “cruises are not going to ruin Belize.”

Professor Hughes has been an advocate for the protection of the coral reef, and has sounded the alarm on the negative effect of dredging in both media interviews and academic journals. He has criticized the Australian government openly for plans of dredging near The Great Barrier Reef. His advocacy for reef health and against dredging has been widely published by a number of outlets.

Fleming’s name (along with that of Professor Terrence Hughes) is still cited as a major part of the claim filed by Godfrey Smith’s Marine Parade Chambers LLP on March 16. The claim asserts that the appointment of the two individuals, while marred with unilaterally ministerial “handpicking” – also presented an apparent bias, since both individuals have gone on the record to either oppose the development of the cruise industry in Belize, Fleming’s case, or dredging near reefs, in the case of Professor Hughes. Waterloo’s attorneys claim that these selections were made in bad faith and for the purpose of breaching the client’s right to protection under sections 3(a) and 6 of the Constitution.  

They are seeking a declaration that the Tribunal as composed is tainted with bias and will likely breach the claimant’s rights and as a result, want the striking down of section 2 of the SI 23 of 2023.

As mentioned, this section allowed for the removal of Senator Herrera. Waterloo claims that the amendment reversed the fair and balanced structure, composition of the appeal’s tribunal and replaces it with one where the minister has the authority to appoint the majority of persons. The company outlines that they were satisfied with the prior structure of the appeal tribunal.

They go to great lengths in a 100-page Affidavit filed by Stewart Howard, Director and CEO of Waterloo, to show what they paint as a disparity between the treatment of the environmental assessment of Port of Magical Belize. They claim that that cruise port was given environmental clearance despite a lack of examination of the negative environmental impact associated with their development.  

“The difference in approach to, and treatment by, the NEAC and the DOE of the two projects cannot be rationally explained,” the affidavit filed by Waterloo states.

The claim from Waterloo goes on to boldly assert that the Belizean government past and present has engaged in a practice to pass special legislation targeting the business of the Ashcroft Alliance. They made reference to the 2017 consolidated claim by Caribbean Investment Holdings Ltd. and Courtenay Coye LLP against the Attorney General of Belize, in which instance the Government passed legislation to target Ashcroft-related businesses. They claimed that this SI 23 of 2023 is “the latest example of this pattern.”