THA VS THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Case Name:              The Tobago House of Assembly v The Attorney General of Trinidad and   Tobago CV 2013/00153

 

Date:                          10th June, 2015

 

Appearances:           Phillip Lamont led by Elton Prescott S.C. instructed by Dorill-Ann       Lamont for the Claimant

 

Larry Lalla and Martin George (in Tobago) led by Seenath Jairam S.C instructed by Kamala Mohammed-Carter and Savitri Maharaj for the Defendant

 

 

Case Summary:

The Tobago House of Assembly (hereinafter referred to as the “THA”) is a statutory body created under the Tobago House of Assembly Act 1980 (“hereinafter referred to as the THA Act”). In its infancy, the THA did not have autonomy. However, a 1996 amendment to the THA Act was designed to remove the limitations which prevented the THA from implementing policies in relation to Tobago and particularly matters set out in the Fifth Schedule of the Act (“hereinafter referred to as the Fifth Schedule”).

The THA has alleged that the Government has by-passed it and has failed to collaborate with the THA on issues arising from matters falling within the Fifth Schedule of the THA Act. The basis of the THA’s claim was that the Government has failed to consult with and include the THA in much of the decision-making process as it relates to matters falling within the Fifth Schedule. This, the THA contends, is in contravention of the provisions of section 25(1) of the THA Act.

A Memorandum of Understanding (“the MOU”) was drawn up in relation to this Plan whereby the parties agreed to hold joint meetings and to exchange and disseminate relevant information. Upon the expiration of the MOU there has been no discussion or report forthcoming from the Government with respect to the Plan. As a result of the lack of information the THA engaged its own project developers to prepare a project plan which was known as The Tobago Reforestation Programme.

Further to this and under the National Reforestation and Watershed Programme, there was the implementation of community groups. These groups acted as contractors and persons from within the community were hired to work on the programme. This thereby generated an income for persons of the community.

The Claimant has alleged that sometime in August 2012 the Government unlawfully terminated the engagement of these community groups in the National Reforestation and Watershed Programme contrary to the THA Act. The Ministry later informed the workers that new contractors had been contacted and sought and there was a commitment in place for these workers to work with the new contractors.

The Claimant asserted that on proper construction of section 25 of the Act it is entitled to implement plans and policies in relation to all matters falling under the Fifth Schedule. Forestation is one such matter. Moreover, the Claimant contended that it was not necessary that it seek leave or approval from Cabinet or the Government in so doing nor is the Government entitled so to do without consulting the THA.

The Claimant accordingly alleges that the Government’s decision to make changes to the National Reforestation and Watershed Programme without consulting the THA was ultra vires and contrary to section 25 of the Act.

Held:

The Court, upon examination of the THA Act, contended that the language of section 25(1) of the THA Act is plain and unambiguous.

This Court also noted that the Fifth Schedule responsibilities have a national impact e.g. town and country planning, infrastructure, including air and sea transportation, wharves and airports and public utilities, telecommunication as well as health services. Therefore, if Tobago was allowed to have autonomy where these responsibilities are concerned, it would lead to confusion and potential disaster in the management and direction of national affairs.

The Court found that on a plain reading of section 25 (1) of the THA Act, there are no powers given to the THA under the THA Act 1996 to the exclusion of the general powers given to Cabinet

In relation to the National Reforestation and Watershed Programme in particular, the Court found that the THA, while well-meaning in its pursuit of a “vision for the development of Tobago” could not embark upon a process which is inconsistent with any policy of the Government. Accordingly, the Court accepted that the Government’s proposed reforestation and watershed plans would take precedence over any such similar plans of the THA, as a plain and literal interpretation of section 25(1) of the THA Act would suggest.

THE ORDER

Thus, the order by the Court in the matter of the construction of Section 25(1) of the Tobago House of Assembly Act, Chapter 25:03 (“the Act”) together with the Fifth Schedule thereto in relation to Section 75(1) of the Constitution of the Republic of Trinidad and Tobago was that;

 

  1. a) Section 25(1) in its plain and ordinary meaning means that any responsibility given to the Tobago House of Assembly (“THA”) pursuant to Section 25(1) of the Act must be subject to the overriding and overarching national policy directives of the Cabinet of the Government of the Republic of Trinidad and Tobago (“the Government”).
  2. b) Section 25(1) gives the THA responsibility to implement policies that are consistent with that of the Government in instances where the Government already has a policy in place.

 

  1. c) Section 25(1) of the Act does not give the THA responsibility to formulate and/or implement policy in respect of matters set out in the Fifth Schedule to the Act which may frustrate or hamper the implementation of Government policy.

Leave to appeal was granted.

 

 

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