Court rules against Harbour Ordinance Statia

October 31, 2015 5:31 PM
ST. EUSTATIUS - NuStar Terminals N.V. has won the injunction filed against the public entity St. Eustatius in connection with the new Harbour Ordinance. The Court of First Instance ruled against the implementation of the ordinance, on Friday.
 
The draft ordinance was not properly publicized, which prevented stakeholders from filing objections before it came into force, the judge stated. The court rejected NuStar’s demand to declare the ordinance null and void, but prohibited the public entity to implement it.
 
The owner of Statia Terminals and its sister company Seven Seas Steamship Company, which makes use of the oil terminal’s facilities, had filed the injunction on August 14.
 
NuStar petitioned the Court to declare the entire ordinance null and void as the company held it not only in contravention with the financial law for the public entities Bonaire, St. Eustatius and Saba FinBES, but also with international treaties and against the principles of proper government.
 
The contested ordinance includes stipulations concerning the payment of taxes and levies in relation to NuStar’s activities in Statia’s harbour and the designation of a free zone.
 
According to the Island Government, represented in this case by attorney Bert Hofman, the case should be referred to the tax court. The judge at the Court of First Instance, however, disagreed, because it could not be ascertained that the inspector of taxes had already given an opinion about the contested harbour fees.
 
Furthermore, a civil judge at the Court of First Instance is authorized to deal with cases concerning the legality of laws and legal regulations, it was stated.
 
The law on the public entities WolBES states that Island Government decisions which include generally binding regulations (algemeen verbindende voorschriften) are only valid when these are publicly announced via a printed or “electronically” available bulletin.
 
Such a bulletin exists on Statia, but according to NUStar’s legal representative T.L.H. Peeters, this had not included any information about the ordinance.
 
The Island Government had also failed to give information via other media, such as local newspapers, radio and television, or via the Internet, it was stated. Instead, the Island Government had used the traditional way of informing the public via the publication board at the Government Guesthouse.
 
According to Government, it was not obligated by law to regularly publish a promulgation sheet, or a gazette and distribute it among all residents and businesses on the island, or publish such document electronically.
Government claimed it had informed stakeholders, among which NUStar and Seven Seas, about the text of the Harbour Ordinance by e-mail of June 22. The Ordinance was also announced in one of the on Statia available newspapers.
 
The Judge found that, in any case, the general regulations had been published in a bulletin, but this document was never (properly) distributed. Therefore, he did not find it proven that the official proclamation of the contested ordinance had been widely available to the general public.
 
Publication via the bulletin board was deemed insufficient, as the Court did not hold this to be a proper means to give widespread notification to the general public about new or changed laws and regulations. “After all, the general public does not know if and when an announcement on the bulletin board is made,” the Judge stated.
 
The Judge said that Government had failed to provide copies of newspaper announcements. E-mail messages were not considered publically available as these were only sent to a number of government-selected stakeholders and were not made available to everyone.
Therefore, the Court arrived at the conclusion that the contested Harbour Ordinance had not been announced as prescribed by the WolBES, which rendered it non-binding.

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