[Coral-List] Chagos Marine Protected Area - Legal Challenge in the British Courts

[Richard Dunne]

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