In a ruling issued on September 30, 2026, the Court of First Instance of Aruba (Gerecht in Eerste Aanleg) declared the appeal of developer Ibersol Holding & Management VBA well-founded (gegrond) and annulled the Government’s decisions rejecting the exemption (ontheffing) under the Nature Conservation Ordinance (Natuurbeschermingsverordening – Nbv) for the construction of a hotel in Hudishibana. This verdict highlights serious formal flaws on the part of the Government and an incorrect legal assessment of environmental laws.
1. Origin of the Dispute
Ibersol Holding & Management VBA intends to develop a hotel project on land in Hudishibana, for which it signed a long-term lease agreement (erfpacht) with Land Aruba and successfully received both the building permit (bouwvergunning) and the construction works permit (aanlegvergunning).
However, to commence the works, the developer required an exemption pursuant to Article 8 of the Nature Conservation Ordinance (Nbv), due to the presence of protected flora and fauna in the area. On September 12, 2024, Ibersol submitted this request, but the Minister rejected it in decisions issued in February 2026.
2. Key Points Overturned by the Court
The judgment, delivered by Judge mr. W.J.A.M. van Brussel, exposed several key irregularities in the Government’s actions:
- Lack of Ministerial Authority (Formal Defect): One of the strongest pillars of the ruling is that the decision was signed by a minister who lacked legal authority. Due to restructuring within the ministries under the Landsbegroting 2026 and the absence of a new National Decree (Landsbesluit) specifying exact responsibilities, nature protection legally remained under the Minister of Transport, Integrity, Nature, and Senior Affairs. Because the decision was signed by the Minister of General Affairs, it lacks proper legal standing and had to be annulled on this ground alone.
- Misapplication of Nature Conservation Law (Lack of Legal Grounds): The Court pointed out that the Minister relied on arguments not protected by the Natuurbeschermingsverordening (Nbv):
- The Nbv does not protect nature or the ecosystem in a general sense, but rather individual plants and animals listed as protected.
- The Minister rejected the permit based on reasons such as tourism impact, surrounding archaeological value, and broad guidelines from the Spatial Development Plan (ROPv).
- The Court clarified that assessment under the ROPv occurs during the issuance of building and construction permits (which Ibersol already received), not when evaluating an Nbv exemption.
- Aspects such as water management or ecological zones can only be invoked if it is demonstrated that they directly affect an individually protected plant or animal—a matter the Minister failed to properly investigate.
- Neglect of Mitigation Plans: Ibersol submitted an “Environmental Management Plan voor development of H3”, proposing methods to rescue and relocate protected flora and fauna. The Court concluded that the Minister improperly ignored this plan and failed to assess whether the exemption could be granted under specific conditions and preventive measures.
- Absence of Scientific Authority Consultation: According to Article 8, paragraph 2 of the Nbv, seeking advice from the Scientific Authority (Wetenschappelijke Autoriteit) is mandatory. The Minister attempted to justify the omission by stating that an entity in Curaçao failed to provide advice due to technical reasons, but the Court ruled that this is not a valid excuse to issue a decision without the mandatory advice.
- Doubts Regarding Impartiality in DNM Advice: The ruling notes a highly controversial phrase in the Minister’s consultation email to the Directorate of Nature and Environment (DNM), asking for advice “containing serious arguments supporting a rejection”. Although the Court did not formally rule bias (vooringenomenheid) because DNM had prior objections, the judge remarked that this phrasing was “highly unfortunate” and underscored the necessity of independent counsel.
3. Conclusion and Next Steps for the Government
As a result of these errors, the Court issued the following order:
- Annulment: The decisions dated February 17 and 20, 2026, are completely annulled.
- 3-Month Deadline: The competent minister must issue a new decision regarding Ibersol’s objections within three months.
- Re-evaluation Mandate: The Government must conduct a proper investigation, seek advice from the Scientific Authority, evaluate Ibersol’s mitigation plan, and properly justify any deviation from existing exemption policies.
- Compensation: The Government must pay Ibersol’s legal fees (Afl. 1,400) and refund the court fee (griffierecht).
This case serves as a clear example that administrative decisions regarding the environment and development must strictly rest on established legal frameworks, without conflating administrative responsibilities or bypassing mandatory technical steps required by law.
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