Photo: Justice Patricia Farnese

Justice Patricia Farnese was asked to recuse herself as chairperson of the NEAC Appeal Tribunal that is to hear Waterloo’s petition for environmental clearance of its cruise and cargo port expansion project at the Port of Belize. A letter from Ashcroft’s lawyers cites what they are suggesting could be “unconscious bias” that may influence her decision due to her considerable work as an environmental activist and close link to Canada’s Green Party. 

by Marco Lopez

BELIZE CITY, Mon. Apr. 24, 2023

Marine Parade Chambers LLP, the law firm of Senior Counsel Godfrey Smith, wrote a letter to High Court Justice Patricia Farnese last Tuesday requesting her recusal as chairperson of the National Environmental Appraisal Committee (NEAC) Appeal Tribunal. The body has been formed to make a final decision on the twice rejected port proposal submitted by the Ashcroft Alliance. This recent offensive from Waterloo’s local lawyers is being directed at the last member of the originally appointed Tribunal – and is the latest in a series of legal assaults geared towards dismembering that body.

Justice Patricia Farnese was appointed to the Tribunal on March 2, as one of the original members. As mandated by the Environmental Impact Assessment Regulations, Justice Farnese is the High Court judge selected by Sustainable Development Minister, Hon. Orlando Habet to sit as chairperson. The letter signed by SC Godfrey Smith, however, cites an appearance of bias that Smith suggests may affect the judge’s decision and it refers to past positions she has taken as an environmental expert and activist as evidence of the possible bias.

In particular, the letter mentions her close involvement with Saskatchewan’s Green Party—a political party formed in Canada in 1998 by environmental and social justice activists. A core principle of the party is “Ecological Wisdom”. Ashcroft has directed his attorneys to request her recusal after his attention was brought to involvement with such efforts.

The letter states that Justice Farnese has described herself as “an active Green Party Member for close to a decade serving in various governance roles at both the local and national level.” In 2016 it is on the record that she offered herself as a candidate for the Green Party and jointly presided over the Official Opening of the General Meeting of the Party.   

In a 2014 paper published in the Journal of Law, Property, and Society she wrote, “planetary boundaries are on the verge of being exceeded such that the earth may no longer be a safe place for humanity. If we ever hope to reconcile the often-competing rights of the extreme poor with environmental conservation goals, the growth imperative and the ethic of more that emerged from it, must be rejected”.”

Ashcroft’s lawyers note that an unconscious bias may taint her decisions made as chairperson of the tribunal when considering the major dredging required to realize the $300 million development. The letter states that given her, “impeccable credentials as an environmental activist and expert,” they are “obliged to respectfully request, notwithstanding some discomfiture, that you recuse yourself as chairperson and member of the Tribunal,” on the ground of the appearance of possible bias.  

We reached out to Justice Farnese to ask if she will oblige the request made by the Ashcroft Alliance, and whether she considered the appearance of bias when she accepted the appointment but are yet to receive a reply. However, according to a local report, she has sent a reply letter in which she reportedly stated that “the request for recusal requires due consideration” before she can decide to “acquiesce to or reject the request”. According to reports, she further noted, “I cannot overlook the fact, however, that any decision raises broader questions concerning whether a judge’s previous political, academic, and advocacy work ought to preclude them from adjudicating matters on the grounds of an appearance of bias, as opposed to actual bias.”

She then stated, “As an adjudicator in Canada, I am familiar with best practices and dominant perspectives on recusal in that jurisdiction,” and said that she “would like the opportunity to consider Caribbean jurisprudence, practice and commentary on recusal to learn if it differs from Canada…”

We understand that the first meeting for review of the Waterloo petition by the NEAC Appeal Tribunal, which was to have been held tomorrow, Tuesday, April 25 and over which Justice Farnese would have presided, has been adjourned by the judge until she has made a “decision on the request for recusal.” Notably, Paul Hunt, Sr. replaced Lucy Fleming as the private sector representative earlier this month; Fleming was the chosen replacement for Senator Kevin Herrera.

The Ashcroft Alliance has launched a civil claim in our domestic High Court to challenge the amendment of the EIA Regulation which allowed for the change in the tribunal composition. They argued that this was done in bad faith since the appeal mechanism for the Waterloo port proposal was already activated. In addition to this, a more looming threat is the International Arbitration which was also invoked by the Ashcroft Alliance under the UK-Belize BIT Treaty.

For now, a host of legal challenges continues to stymie to the work of the NEAC Appeals Tribunal. This body is the last legislated step that can be taken by a developer to attain environmental clearance within our laws after being rejected by the Department of the Environment. The Ashcroft Alliance has pulled out all the legal stops to seemingly contort the appeal tribunal to their liking, after the removal of Senator Herrera – brother of their local consultant Allan Herrera.

The company has said that they were satisfied with the original iteration of the tribunal, which included Senator Herrera (affiliated with the Belize Chamber of Commerce and Industry, which has expressed unreserved support for the Waterloo project) and Justice Farnese, and is only now requesting that she removes herself from the body. Justice Patricia Farnese joined the High Court of Belize in January 2022 as a new judge.