Photo: Markhelm Lizarraga – Private Sector representative on NEAC’s Waterloo Appeal Tribunal

DOE represented in appeals process by Ben Juratowitch KC

BELIZE CITY, Thurs. Aug. 10, 2023

Markhelm Lizarraga, former private sector senator and current chairman of majority state-owned Belize Telemedia Limited, has not escaped being branded by Waterloo Investment Holdings Ltd. as also being in a position of conflict of interest. As in the case of the first and second private sector appointees (Lucy Fleming and Paul Hunt, Sr., respectively) to the Appeal Tribunal handling the review of the Department of the Environment’s decision to deny environmental clearance to Waterloo’s Port of Belize expansion project, the company has objected to Lizarraga’s placement on the three-member panel. In a letter dated August 2, 2023, Senior Counsel Godfrey Smith, representing Waterloo, asked that Lizarraga recuse himself.

Smith, in an interview, affirmed that latest developments regarding Waterloo’s appeal suggest that “the deck was always stacked against it in favour of Portico.” He went so far as to say that the tribunal process is part of the “stacking of that deck.” His explanation for that assertion is that the original composition of the tribunal was one member being the Senator representing the private sector – “so, notionally, that person would be looking at the interest of the developer. And then, on the other hand, there would be someone appointed by the Minister – notionally looking at the interest of the DOE. And then on top of that would sit an independent judge of the Supreme Court.” According to Smith, that is the way things work in arbitration “where the two disputing parties each select an arbitrator, and then the two of them come together and select a chairperson.” Smith argues that what the Government should have done when it amended the law to remove the private sector senator because of his relation to a Waterloo consultant, was to have gone back to the private sector and ask them to name someone else. He declared, “the Minister then names that person, thereby securing for itself two of the three persons on the tribunal.” In the communication to Lizarraga, Smith says this was never the intended meaning of the Environmental Impact Assessment (Amendment) Regulations.

In outlining to Lizarraga why he is in a position of conflict of interest, Smith notes that serving as Chairman of Belize Telemedia Ltd. at the behest of the prime minister could impact his decision-making. Smith writes, “Unfortunately, the prime minister’s negative disposition towards the Appellant places you in a conflict of interest, dependent as you are on the largesse of the prime minister to continue to receive your remuneration as his director on the board of directors of Telemedia which is majority owned by the Government of Belize.” Smith has also pointed to the Prime Minister’s “now exposed plan to pass legislation to give effect to Portico Enterprises Ltd.’s Definitive Agreement.” Smith then proclaims that “the government is clearly in favour of the Appellant’s competitor, Portico, and opposed to the Appellant’s project.” Smith also highlighted the PM’s recent public pronouncements that he intends for Government to introduce “fresh legislation to assist Portico to the detriment of the Appellant.”

Smith additionally makes the argument that unconscious bias could taint Lizarraga’s consideration of Waterloo’s project under appeal. When we sought to learn from Lizarraga today if he would, in fact, recuse himself as requested, he told us he has no comment at this time.

Presented with the idea that Waterloo is simply trying to frustrate the appeal from being heard, Smith defended, “Not at all! Remember that time is ticking by. You know there are three developers competing, and whoever gets out of the gate will pretty much have an advantage. It’s not in Waterloo’s interest to delay this, but you can’t allow it to proceed in a way where you sincerely believe it’s stacked against you. And that would mean then you have to take that to the court and have the court rule on it and begin the process all over again.”

Smith also commented on the pre-eminent international attorney hired to represent the Department of the Environment in the appeals process. That lawyer is no other than King’s Counsel Ben Juratowitch who is representing Belize at the International Court of Justice. Smith questioned, “If you keep in mind that the government has consistently been saying ‘let the market decide; we have no preferences.’ Then why do you have a vested interest in the outcome of this tribunal by seeking a King’s Counsel of Mr. Juratowitch’s stature, his junior counsel and two other local counsel, to represent, in, as what you rightly say, is a fairly mundane matter?” He proclaimed that what this represents is “the extent to which government has a vested interest in ensuring that Waterloo does not get across the mark.”

On the related matter of the application to Tribunal chairperson, Hon. Justice Patricia Farnese that the Belize Federation of Fishers and residents of the Jane Usher community join the process as interested parties, Smith responded that that is not contemplated in current law and Waterloo will oppose the application.