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Kingdom Service Caribbean Netherlands (RijksdienstCaribisch Nederland (RCN)) has lost the court procedure in its quest to obtain a fibre optic cable landing permit in St. Maarten, Judge René van Veen of the Court of First Instance said Wednesday.
RCN has started laying fibre optic cables in Saba, St. Eustatius and St. Kitts. Minister of Tourism, Economic Affairs, Transport and Telecommunication, Franklin Meyers does not want to grant a second fibre optic cable landing permit in St. Maarten that would utilise the landing site of UTS, the main competitor of Smitcoms, a member of the local TelEm group of companies.
RCN believed Minister Meyers, represented in Court by attorney-at-law Richard Gibson Junior, had no authority to deny a permit. Therefore, it had launched a so-called administrative LAR procedure against the Minister’s decision. The issue has been deliberated on since June 2011, when RCN requested permits and authorisation to lay a submarine telecommunication cable for the Saba/St. Eustatius Cable System (SSCS), which is to connect the two islands with telecom infrastructure in St. Maarten and St. Kitts.
Notwithstanding deliberations between RCN and Interim Director of Bureau Telecommunication and Post St. Maarten BTPSXM Peggy-Ann Brandon, this had not led to a permit. “RCN will not be permitted to enter the coastal waters of St. Maarten with telecommunications infrastructure prior to all pertinent permits being obtained,” it was stated in a letter sent by the Minister to RCN on March 2. In this letter, the Minister pointed out to RCN “that the application process and requirements set are to ensure that impacts on marine life, our tourism product and economic interest can be weighed properly, prior to any decision of this Government to allow the landing of such cable on St. Maarten.”
RCN had filed a petition with the Court of First Instance on February 24 to allow it to lay the SSCS cable on St. Maarten’s seabed and to land it on the Great Bay beach in the vicinity of the two existing beach manholes, or any other location. RCN also requested that the Court attach a fine of US $100,000 per day in case of non-compliance.
According to RCN, the Minister’s refusal to grant a permit would thwart Dutch government interests, because the cable also will be used for Coast Guard, Foreign Affairs, Defence and RCN services. RCN’s legal representative, attorney-at-law Maarten Le Poole, claimed the delay in laying the Saba- St. Maarten segment would cost between US $800,000 and $1.5 million extra. In ruling, Judge Van Veen stated there were no written or verbal agreements between RCN and Country St. Maarten in which St. Maarten pledged its cooperation in the contested submarine telecommunication cable network. RCN had stated it had been “confident” the required permits would be granted before the start of the project in early March. However, the Judge said no document had been submitted to the Court as proof of this claim. The judge declined RCN’s request for a “temporary provision” pending the outcome of the court case on the merits, because it could not be ascertained that the required permits could not be declined, or had been declined wrongly.
The Court stated it was unclear exactly what permits and authorisations were needed. However, it had been established that the project needed at least a permit based on the Ordinance Maritime Control. In this ordinance it is stipulated that the effects on marine environment, nature, shipping safety, and maritime archaeological heritage need to be taken into consideration. Concerning statements that the request for a permit had been declined in connection with the socalled landing partner, the Judge said these were mainly based on the Minister’s statements in press releases. “The Court bases decisions on the court documents, not press releases,” Judge van Veen said. “In the court documents it cannot be (explicitly) read that the defendant is only prepared to grant the required permits/authorisations in case TelEm/ Smitcoms would be the socalled landing partner, and that these will not be issued if UTS is the so-called landing partner,” the Judge stated. The Court offered no opinion on the question whether the Minister would be entitled to set such a condition. RCN does not have the right to appeal this Court decision.
Source: “The Daily Herald ” 2012-03-15