Claimant seeks enforcement of environmental laws in notice of dispute alleging expropriation of Barbadian nature sanctuary

By Elizabeth Whitsitt

February 14, 2010

A notice of dispute forwarded to Barbados some five months ago by Mr. Peter Allard, Canadian owner of the Graeme Hall Nature Sanctuary, contends that the Government of Barbados has violated its international obligations by refusing to enforce its environmental laws. 

Located on the south coast of Barbados, Graeme Hall Sanctuary consists of 34.25 acres of natural wetlands and is situated within a 240 acre green space that is the last significant mangrove forest and migratory bird habitat in the Caribbean state.

Mr. Allard acquired the land for the Sanctuary in the mid-1990s and subsequently developed it into an eco-tourism facility.  In the notice of dispute, Mr. Allard claims to have taken numerous steps to contribute to the sustainability of the Sanctuary only to have such efforts thwarted by the acts and omissions of Barbados.

Mr. Allard asserts that Barbados’ acts and omissions have severely damaged that natural ecosystem relied upon to attract tourists to the Sanctuary.  Consequently, Mr. Allard contends that Barbados failed to provide his investment full protection and security and fair and equitable treatment in accordance with the Canada-Barbados BIT.

With respect to Barbados’ omissions to protect the Sanctuary, Mr. Allard argues that Barbados has, among other things, failed to: (i) prevent the repeated discharge of raw sewage into the Sanctuary wetlands, (ii) investigate or prosecute sources of runoff of grease, oil, pesticides, and herbicides from neighboring areas, and (iii) investigate or prosecute poachers that have threatened the wildlife within the Sanctuary.

Additionally, Mr. Allard has made reference to actions taken by the Parliament of Barbados in 2008, which resulted in the adoption of a new National Physical Development Plan.  Barbados’ new Development Plan revokes its previously protective land use policies and instead calls for the commercial and residential development of the majority of the 240-acre green space surrounding the Sanctuary.  In Mr. Allard’s view those changes, which will inevitably cause further environmental damage to the Sanctuary, have led to the indirect expropriation of his investment.

In an interview with ITN Mr. Allard’s lawyer, Mr. Robert Wisner of McMillan LLP, indicated that while Barbados has yet to respond to his client’s notice of dispute, he is hopeful that an amicable settlement between the parties can be reached.

A press release issued by the Sanctuary indicates that it has been over a year since there has been any face-to-face contact between Sanctuary and Barbadian government officials.

According to the Canada-Barbados BIT, Barbados has until early March, 2010 to respond to Mr. Allard’s notice of dispute.  After that Mr. Allard may initiate arbitral proceedings under the ICSID Additional Facility Rules or in accordance with the UNCITRAL Arbitration Rules.  Mr. Wisner confirmed to ITN that his client is willing to proceed to arbitration if necessary but indicated that a decision has yet to be made regarding the forum for potential arbitral proceedings.

Sources:

A copy of Mr. Allard’s Notice of Dispute can be found here:

http://graemehall.com/legal/papers/BIT-Complaint.pdf

A copy of the Sanctuary’s press release can be found here:

http://graemehall.com/press/releases/promised-meeting-fails/index.htm