[Coral-List] Chagos Marine Protected Area - Legal Challenge in the British Courts
Richard Dunne
RichardPDunne at aol.com
Wed Jul 25 09:24:25 EDT 2012
CHAGOS MARINE PROTECTED AREA - LEGAL CHALLENGE IN BRITISH COURTS
In 2010 the Chagos Refugees Group (CRG) launched a challenge to the
legality of the Chagos MPA declared by the British Foreign Secretary on
1 April 2010. The claim is based upon 3 main grounds: (1) an improper
motive, namely an intention to create an effective long-term way to
prevent Chagossians and their descendants from resettling in the BIOT;
(2) failure to reveal, as part of the consultation preceding the MPA
decision, that the defendant’s “own consultants had advised that the
resettlement of the population was feasible”; and (3) failure to
disclose relevant environmental information in the course of the
consultation preceding the MPA decision.
On 4 July 2012 the CRG's legal representatives applied to the High Court
for permission to cross-examine Government witnesses (the Commissioner
of the British Indian Ocean Territory, and his Administrator) concerning
a meeting that took place between them and US Embassy officials in
London on 12 May 2009 and which has since been widely disclosed in a
WikiLeaks Cable. The application was heard by Lord Justice Burnton, who
has today issued his judgment in favour of the CRG. This a brief summary
extract of that judgment:
"I acknowledge that cross examination is exceptional in judicial review
proceedings......I also acknowledge that the Wikileaks documents must
have been obtained unlawfully, and in all probability by the commission
of a criminal offence or offences under the law of the United States of
America. However, the documents in question have been leaked, and indeed
widely published. No claim has been made to the effect that the
documents should not be considered by the Court on the grounds of public
interest immunity or the like. They are before the Court. The Court will
have to decide whether or not they are genuine documents, that they are
copies of what they purport to be. The memorandum of the meeting of 12
May 2009, in particular, appears to be a detailed record, which could
fairly be the basis of cross examination. I do not see how the present
claim can be fairly or justly determined without resolving the
allegation made by the Claimant, based on the Wikileaks documents, as to
what transpired at the meeting of 12 May 2009, and more widely whether
at least one of the motives for the creation of the MPA was the desire
to prevent resettlement. Given the conflicting evidence, in my judgment,
in order to resolve the dispute, oral evidence will be necessary,
including cross examination of Mr Roberts and Ms Yeadon. It follows that
I shall make the order sought by the Claimant."
I have not included here any reference to the content of the WikiLeak
cable bearing in mind this might be inappropriate on a US Govt website,
however suffice it to say, it contains credible evidence that British
Government officials saw the MPA as an effective way of preventing
future resettlement and appeared to be using it for that purpose.
The case is now being fast tracked and is expected to be heard in
October 2012.
--
Richard P Dunne
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