Dwene Ebanks Applicant v The Department of the Environment First Respondent The National Conservation Council Second Respondent

• Jurisdiction: Cayman Islands
• Judge: Mangatal J
• Judgment Date: 01 August 2016
• Judgment citation (vLex): [2016] CIGC J0801-1
• Docket Number: Cause No.: G 130 of 2016
• Court: Grand Court (Cayman Islands)
• Date: 01 August 2016

In the Matter of an Application for Judicial Review Under Order 53 of the Grand Court Rules 1995

In the Matter of a Decision of the National Conservation Council Under Section 35(2) of the National Conservation Law 2013

Between:

Dwene Ebanks

Applicant

and

The Department of the Environment

First Respondent

and

The National Conservation Council

Second Respondent

[2016] CIGC J0801-1

Before:

Mangatal J

Cause No.: G 130 of 2016

IN THE GRAND COURT OF THE CAYMAN ISLANDS

HEADNOTE

Judicial Review—Illegality, Irrationality, Failure to provide prior consultation regarding NCC decision to release 22 Million Genetically modified mosquitoes in West Bay, Grand Cayman—Previous release occurring twice before, in 2009–2010 — Environmental Law and Public Health—whether Decisions fettered by inappropriate A considerations—Considerations of Detriment to Good Administration.

1 The Cayman Islands are a British Overseas Territory located in the Caribbean Sea. The Islands are comprised of three islands, of which Grand Cayman is the largest, with an area of about 75 square miles. Grand Cayman, by the latest 2015 polls is said to have a population in the region of 60,000. If you are minded to jump in a motor vehicle and drive, the entire Island can be seen in just a few hours. Because of the small size of both the land and population, it does not take long for news about what happens on one end of the Island to be known elsewhere on the rest of the Island. Albeit surrounded by certain alleged concerns and criticisms on the international environmental scene some years ago, the fact of the matter is that Grand Cayman was the first place in the World where the release of Genetically Modified Mosquitoes (‘GMMS’) has taken place. This occurred between 2009–2010, on the East End side of the Island.

2 This is an application for Judicial Review. It is brought with leave which I granted on 13 July 2016. The ex parte application came before me on that afternoon, in the midst of a very busy Court Schedule, all week and that morning in particular. I suddenly had before me more than 598 pages worth of evidence and documents to review in order to decide whether to grant leave to the applicant, Mr. Dwene Ebanks. I understood the urgency of the application, since the application sought, amongst other relief, a stay of events and actions scheduled for the very next day. However, I also understood the weightiness and importance of the subject matter to the public bodies concerned, and indeed, to the public in general. Thus, I ordered that the Attorney General's Department, who had also received a pre-action protocol letter from the Applicant's Attorneys some time beforewarning of an intended application, be given notice of the hearing that evening. I so ordered so that I could have, as much information to try and absorb in the limited time available, and in order to make a decision that I felt was appropriate and just, in all of the circumstances.

3 I granted leave and ordered an expedited substantive Judicial Review hearing on 19 July 2016. I had regard to the subject matter and to the evident need for an early decision. I also made case management orders for the filing of affidavit evidence and skeleton arguments. I wish to express my profound appreciation to the parties and their Counsel for the skilful and cooperative manner in which the case has been conducted.

4 I ordered that the grant of leave, operate as a stay of the challenged decision, initially until the 19 July 2016 when I heard the substantive matter, and then until yesterday when I gave my decision refusing the relief sought, orally. I further extended the operation of the stay, until today, 26 July 2016 so that I could deliver draft reasons to the parties.

5 Needless to say, I have had to put aside other pressing cases, in order to review a great deal of documents, evidence and legal authorities in a short space of time. I am not alone in having to do that quite frequently. The Cayman Islands' Grand Court and Summary Court alike, in my view, have an extraordinary amount of commercial, civil and criminal work of the highest calibre. This type of work requires great attention and needs time for quiet, focused undistracted judicial thought and consideration in order to be done properly, thus maintaining the considerable reputation of these Courts.

6 I granted the stay for a short period. A stay allows for an appropriate pause while the Court considers the challenge mounted by a citizen against the decision of a public body, and in respect of which the citizen claims to be aggrieved. As stated in Michael Fordham QC's invaluable work,Judicial Review, 6^th Edition, at paragraph 2.1, ‘…Judicial review is a special supervisory jurisdiction which is different from both (1) ordinary (adversarial) litigation between private parties and (2) an appeal (rehearing) on themerits. The question is not whether the judge disagrees with what the public body has done, but whether there is some recognisable public wrong.’

7 Tne decision which is challenged in these proceedings was communicated by the Department of the Environment, the First Respondent (the ‘DoE’), acting on behalf of the National Conservation Council (the ‘NCC’), on the 18 yMay 2016 to permit the open release of up to 22 million genetically modified mosquitoes (GMMS) into the West Bay area of the Cayman Islands (the ‘Contested Decision’). The GMMS are imported in egg form, and the judicial review challenge extends to the grant by the Department of Agriculture (the ‘DoA’) of a licence for such import based on the advice of the DoE. Although it was agreed at the leave application hearing that the DoA would not be included as a party to the judicial review application, it would follow, as Mr. Tromans QC postulated, that any flaw found in the decision of the DoE/NCC to allow the release would extend to the decision to grant the import licence.

8 The release of the GMMS is a programme set to be rolled out over a 9 month period, and was scheduled to have commenced on the 14 July 2016. It is because the planned operation appears to be extremely time sensitive in a number of ways, and allegedly involves the critical issues of public health and the environment, that I have taken the step of expediting the substantive hearing in such a heightened way.

9 The Applicant Mr. Dwene Ebanks is a Grand Cayman National and resident of the West Bay area. He has in his affidavit explained that he has very serious concerns about the lack of publicity surrounding the first release of GMMS which took place in the East End of the Cayman Islands in 2009/2010. His evidence is that these concerns are shared with other Non-governmental Organisations (‘NGOs’) and other relevant entities active and /or concerned with the region and the environment. He explains how he attended a public meeting in West Bay on the 24 May 2016, where he felt that a full picture was not being presented by the Mosquito Research and Control Unit (‘MRCU’) and Oxitec, and including how a video produced by the Cayman Islands Government (‘CIG’) edited out audience questions. Following this meeting he set up an on-line petition to oppose theproposed release. Mr. Ebanks claims that some 673 people have signed the online petition and another 223 people have signed a hard copy. Mr. Ebanks has also expressed concerns as to the inaccuracy of information being disseminated to the public, for example whether the release includes a proportion of female (biting) mosquitoes and the ability of offspring to reach maturity.

10 The application seeks the following relief:

• a. A declaration that the Contested Decision, the advice given to the DoA on the application for the import of GMMs, and the grant of the import licence by the DoA are legally flawed.

• b. Orders quashing same.

• c. (i) Orders prohibiting the open release of the GMMs; and

  (ii) The further importation of GMMs pursuant to same.

• d. A stay of the Contested Decision and all further imports of GMMs pursuant to the said import licence pending the final determination of the matter; and e. An order for costs of and incidental to this application to be paid by the First Respondent and/or the Second Respondent.

11 There are five grounds of challenge, which appear to be based upon the wide range of illegality, irrationality and procedural impropriety, essentially as follows:

• (1) Failure to carry out an independent risk assessment of the consequences of the proposed release.

• (2) Flawed reliance on a risk assessment carried out in October 2009.

• (3) Failure to carry out a public consultation.

• (4) Predisposition or taking into account an immaterial consideration, hence fettering the exercise of a discretion.

• (5) Irrationality.

12 It is the Respondents' case that the grounds for challenge put forward by the Applicant are not supported by any cogent evidence and are entirely misconceived. The Respondents' case is supported by the following five affidavits:

• a. 2 Affidavits of Dr. William Petrie, Director of the MRCU, sworn to respectively on the 15 and 18 July 2016;

• b. First Affidavit of Christine Rose-Smyth, Chairman of the NCC, sworn to on 15 July 2016;

• c. First Affidavit of Gina Ebanks-Petrie, Director of the DoE, and Member of the NCC, sworn to on 15 July 2016;

• d. First Affidavit of Dr. Samuel Williams-Rodriquez, Acting Medical Officer of Health, sworn to on the 15 July 2016 also.

13 There is also before the Court the affidavit of Dr. Simon Warner, sworn on 18 July 2016, which has also been filed in support of the Respondents' case. Dr. Simon Warner is the Chief Scientific Officer of Oxitec Limited, the parent company of Oxitec (Cayman) Limited which has partnered with the MRCU in the Project. Dr. Warner has expressly stated in his affidavit that his purpose was to explain, in as simple terms as possible, the science behind the genetically...