By: Omar Silva

Belize City, Friday 28th April 2023

Marine Parade Chambers LLP, the law firm of Senior Counsel Godfrey Smith, has written a letter requesting the recusal of High Court Justice Patricia Farnese 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.

Smith cites an appearance of bias that may affect the judge’s decision and refers to past positions she has taken as an environmental expert and activist as evidence of the possible bias. The letter mentions Farnese's close involvement with Saskatchewan’s Green Party—a political party formed in Canada in 1998 by environmental and social justice activists.

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.

However, Farnese 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."

The NEAC Appeals Tribunal is the last legislated step that can be taken by a developer to attain environmental clearance within Belize's 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.

On the other hand, some argue that Justice Farnese's involvement with the Green Party and her environmental expertise may actually make her a suitable chairperson for the NEAC Appeals Tribunal. However, others believe that her involvement with a political party and past statements on environmental issues may indicate bias, even if unconscious, and could potentially affect her decisions.

The ongoing legal challenges and requests for recusal of members of the NEAC Appeals Tribunal highlight the complexity of balancing development and environmental concerns in Belize. While developers may argue that their projects are beneficial for the country's economy, environmental activists and concerned citizens may argue that the potential negative impact on the environment and natural resources outweighs any economic benefits.

Ultimately, the decision of whether or not to recuse Justice Farnese from the NEAC Appeals Tribunal will be up to her, and will likely have significant implications for the future of the Waterloo port proposal and the balance between development and environmental conservation in Belize.